Central Administrative Tribunal - Jabalpur
Shri R.D. Sharma vs Union Of India on 17 May, 2013
RESERVED
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH,
JABALPUR
ORIGINAL APPLICATION No. 1142 of 2011
Jabalpur, this Friday, the 17th day of May, 2013
HONBLE MR. JUSTICE DHIRENDRA MISHRA, JUDICIAL MEMBER
HONBLE MR.G.P.SINGHAL, ADMINISTRATIVE MEMBER
Shri R.D. Sharma
S/o late Lokmanya Sharma
Aged about 69 years,
Retd. Principal Chief Conservator of Forests
Madhya Pradesh, R/o 31, Aranya Vihar
Chuna Bhati, Kolar Road, Bhopal 462001 (MP) - Applicant
(By Advocate Shri Amardeep Gupta &
Shri Manoj Sharma)
V e r s u s
1. Union of India,
Through its Secretary
Ministry of Personnel, Public Grievances &
Pensions, Dept. of Pension & Pensioners Welare
Lok Nayak Bhavan, New Delhi 110003
2.State of Madhya Pradesh, through -
Principal Secretary, Dept. of Forests
Mantralaya, Bhopal (MP) 462001 Respondents
(By Advocate Shri S.K. Mishra (R-1)
Shri Shashank Shekar (R-2)
ORDER
By G.P.Singhal,AM.-
The applicant in this OA has prayed for the following reliefs:
i. Call for the entire material record pertaining to the instant controversy from the respondents for its kind perusal.
ii. Quash and set aside the impugned rejection order dated 12.08.2011/ 24.06.2011 Annexure A-1.
iii. Direct the respondents to revise the pension of the applicant, equivalent to 50% of minimum of pay scale of apex pay scale of Rs.80,000/- fixed with all consequential benefits including arrears etc. and interest thereon, till realization.
iv. To grant any other relief/s, which this Tribunal deems fit and proper in the facts and circumstances of the case to the applicant.
v. Award cost of the instant lis to the applicant.
2 The brief facts of the case are that the applicant, who was a member of Indian Forest Service (in short, IFS) of Madhya Pradesh cadre, retired from the post of Principal Chief Conservator of Forest (PCCF) of State of Madhya Pradesh, on 31.12.2001. Government of India, after considering the recommendations of 6th Central Pay Commission, has upgraded one post of PCCF in the IFS cadre to the Apex scale {Rs.80,000 (fixed)} vide notification dated 27.9.2008. In regard to refixation of pension for those retired before 1.1.06, it is provided in para-4.2 of the office memorandum dated 1.9.2008 of Department of Pension & Pensioner Welfare (DPPW) (Annexure A-3) that, The fixation of pension will be subject to the provision that the revised pension, in no case, shall be lower than fifty percent of the minimum of the pay in the pay band plus the grade pay corresponding to the pre-revised pay scale from which the pensioner had retired. In the case of HAG + and above scales, this will be fifty percent of the minimum of the revised pay scale. Therefore, the pension of the applicant should not have been fixed at lesser than Rs.40000, which is 50% of the Apex scale, as the applicant was working as Head of the Forest Department till his superannuation and thus was entitled to get the pension related to apex scale as per sixth Central Pay Commission (in short CPC) Recommendations.
3 The applicant preferred representation dated 8.10.10 (Annexure A-4) to Respondent No.1 in this regard. Thereafter, he filed OA.201/11 before this Tribunal, which was disposed of at the admission stage, with a direction to the respondents to consider the representation of the applicant and to pass a speaking order within a period of 90 days from the receipt of the order. In this order, liberty was given to the applicant to furnish a fresh representation / appeal to the respondents within 10 days. Therefore, the applicant filed detailed representation dated 2.4.2011 (Annexure A-6) to the respondents, along with copy of the documents. This representation was not decided, and therefore the applicant filed Contempt petition No.CCP.48/2011 before this Tribunal. However, vide covering letter dated 12.8.2011, the applicant was delivered copy of the order dated 24.6.2011, by which his representation had been considered and rejected by the respondents. Hence, this OA.
4 The applicant submitted that 3 States Chhattisgarh, Himachal Pradesh, and Haryana have already extended the benefit of notification dated 27.09.08 to the officers, who were appointed by these respective Governments as Head of Forest Department and retired in that capacity before 1.1.06, thus, allowing them to draw pension of Rs.40,000 p.m. w.e.f. 1.1.2006 (Haryana have allowed from 27.9.2008).
5 The applicant further submitted that he sought information under RTI Act, according to which, no power or functions have been given to the PCCF, promoted as Head of Forest force, which were not invested in the earlier post of PCCF, MP, the post held by him at the time of superannuation. Relying on the judgment of Honble Supreme Court, in the case of Union of India Vs. Maj. Gen. SPS Wains, the applicant submitted that the pension of a senior officer cannot be less than that of an officer junior in rank, irrespective of date of retirement of a senior officer. As against this, if the applicant is fixed at the level of Rs.37,750/- p.m., his pension will be lower than that of the officers retiring from the post of Additional PCCF, which is the feeder post for promotion to the post of PCCF, who will be getting pension up to Rs.39,500/- p.m. on retirement, as their revised pay scale extends up to Rs.79,000/-.
6 The applicant further submitted that, before 5th CPC recommendations, the nomenclature of Head of Forest Department was Chief Conservator of Forests. 5th CPC designated the same as Principal Chief Conservator of Forests. When the retired Chief Conservator of Forests, who were Head of Forest Department, demanded that their pension be fixed on the basis of pay scale of PCCF, Central Government refused on the ground that PCCF is an upgraded post. However, Honble High Court of Himachal Pradesh, Shimla, in CWP No.978/2000, Swaran Singh Chehal Vs. Union of India, vide their order dated 26.3.2008, held that the petitioners are entitled to get pension at the rate of 50% of minimum of the scale of pay attached to the post of Principal Chief Conservator of Forests. The present case is on similar grounds and the applicant is entitled to get 50% of the apex scale, which is the pay scale for the upgraded post of Head of Forest Department, as per the 6th CPC Recommendations.
7 The respondent no.1, in their reply, submitted that the representation of the applicant in this regard has been decided by the order dated 24.6.2011. The instructions issued for revision of pension of pre-2006 pensioners vide DPPW OM dated 1.9.08 (Annexure A-3) provide for fixation of pension in such manner that in no case, it shall be lower than 50% of the minimum of the revised pay scale. It has been further clarified vide DPPW OM no.38/37/08-P&PW(A) dated 11.2.09 that, in view of specific provision in para 4.2 of OM dated 1.9.2008, the benefit of upgradation of posts subsequent to the retirement would not be admissible to the pre-2006 pensioners. The applicant retired on 31.12.2001 from the post of PCCF, MP, which carried HAG + Scale of pay of Rs.24050-600-26000. The corresponding revised pay scale w.e.f. 1.1.2006 in regard to HAG + Scale is Rs.75,500-80000. Therefore, the pension of the applicant has been fixed at 50% of the minimum of this pay scale, at the level of Rs.37,750 p.m. 8 The respondents further submitted that the apex scale of Rs.80,000 (fixed) has been introduced in the Indian Forest Service as a new pay scale, after the 6th CPC recommendations, by upgradation of one existing post of PCCF, as Head of Forest Force, in each State cadre. This new scale is effective from 27.9.08 i.e. date of notification of the Indian Forest Service (Pay Amendment) Rules, 2008. This post in apex scale is to be filled by selection from amongst the officers holding the post of PCCF in the state cadre in the HAG + scale of Rs.75500-80000. Shri RD Sharma, the applicant, retired on 31.12.2001, i.e. before the apex scale of Rs.80,000 came in to existence in regard to IFS. As he was never appointed to hold the post of Principal Chief Conservator of Forests in the apex scale, in terms of Note-2 of the Rule 3(1) of Indian Forest Service (Pay) 2007, as amended by notification dated 27.9.08, he is not entitled to pension of Rs.40000, being 50% of the apex scale of Rs.80000 (fixed). The respondents further submitted that even those officers, who retired after 1.1.06 and were never appointed to the post of Principal Chief Conservator of Forests in the apex scale of Rs.80000, are not entitled to the pension of Rs.40000 on their retirement, if they do not reach up to the stage in HAG + pay scale. Even after 5th CPC, modified parity was allowed in the normal replacement scale and benefit of upgradation of post was not given to the pensioners who retired before such upgradation. This position was upheld by Honble Supreme Court, in their judgment dated 23.11.2006 in CA no.3173-3174/2006 and 3188-3190 of 2006 (K.S. Krishnasamy vs. UOI). Thus, the OA, being without any merit, deserves to be dismissed.
9 The respondent no.2, in their short reply, have taken the stand similar to that of Respondent no.1.
10 We have heard the learned counsel for the parties, and perused the pleadings and documents annexed therewith. We have also gone through the written submissions filed by the applicant and respondent no.2.
11 We find that the issues relevant to this case have been considered and decided by Honble Supreme Court in the matters of K.S. Krishnaswamy and others Vs. UOI and another, 2006 (13) SCC 215. In this case, Civil Appeal nos.3173 & 3188 of 2006, which particularly relate to the matters in this case, were also decided. Para 7 and 8 of this order, which are related to the factum of these Civil Appeal cases, are reproduced as under:
7 The appellant retired on 30.9.1993 as Member (Personnel), Postal Services Board in the pay scale of Rs.7300-8000. In the Fifth Pay Commission, the scale was revised to Rs.22,400-26000 w.e.f 1.1.1996. The Ministry of Finance by a memorandum dated 30.6.1999, revised scale of certain high posts upwards and revised the scale of three posts of Members as 24,050-26000. The appellant claimed that he is entitled to the same upward revision of pay. His claim was contested by the Union of India that upward revision of office memorandum dated 30.6.1999 is only prospective in nature and, therefore, the same is not applicable to the case of the applicant, as he was Member only up to 30.9.1993.
8 The respondents were the General Managers in the Indian Railways, retired prior to 1.1.1996. They were holding the pay scale of Rs.7300-8000 at the time of their retirement. In the Fifth Pay Commission, their scale was correspondingly revised to Rs.24050-26000. Their claim was rejected by the Tribunal. However, the High Court upset the order of the Tribunal and, hence, the present appeal by the Union of India. The Honble Supreme Court, vide their order dated 23.11.2006, dismissed the Civil Appeal no.3174/2006 and allowed Civil appeal no.3188/2006, thus, holding the view of Union of India that the pensioners, who retired before 1.1.96, were not entitled to the pay scales of the posts upgraded after 5th CPC recommendations.
12 During 5th CPC, Government of India, had issued office memorandum dated 17.12.1998, which contained the following provision:
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 lesser than 50% of the minimum pay in the revised scale of pay introduced w.e.f. 1.1.96 of the post last held by the petitioner. These instructions were subsequently revised vide office memorandum dated 11.5.2001 and by it, revised scale of pay of the post last held, was replaced by, corresponding scale of the scale of pay held at the time of superannuation / retirement. Honble Supreme Court did not find any anomaly in regard to it in K.S. Krishnaswamy (supra).
13 On the other hand, in case of 6th CPC, the instructions contained in OM dated 1.9.2008 of DPPW clearly provide that it has to be 50% of the minimum of the pay scale corresponding to the pre-revised pay scale from which the pensioner had retired. It does not even talk about the post held at the time of retirement and only relates the pension revision to corresponding pre-revised pay scale from which the pensioner had retired. Thus, the applicants contention in regard to his eligibility for pension relating to the one upgraded post of PCCF in the State cadre of IFS, has no feet to stand, in view of clear provision in the pension fixation rules of 1.9.2008 (Annexure A-3).
14 The judgment of Honble Supreme Court in the matters of SPS Wains (retd.) (supra) is in regard to Army personnel, wherein, the pensions corresponding to Major Generals and equivalent ranks in the two other wings of the defence services, have been ordered to be fixed at the rate given to similar officers of the same rank after the revision of pay scales with effect from 1.1.1996 and thereafter. Thus, the facts and circumstances of the present case are clearly distinguishable from the case of SPS Wains (supra).
15 In the case of Swaran Singh Chahal (supra) it is mentioned in the order dated 26.3.2008 that, the relief was granted on the ground that, there was no upgrdation of the post of the Chief Conservator of Forests to Principal Chief Conservator of Forests, but it was only the change in the nomenclature of the post i.e. redesignation. As against this, in the present case, it is upgradation of one of the posts of PCCF in the state cadre, and this post has to be filled by selection from amongst the forest officers holding the post of PCCF in the State. Thus the facts of the present case are clearly distinguishable from the case of Swaran Singh Chahal (supra). Further, the pension fixation rules, issued vide OM dated 1.9.2008 (Annexure A-3) make it very clear that the rule of 50% is not linked to the post held by the pensioner at retirement, but to the pay scale from which the pensioner had retired. Since the applicant had retired while working in HAG + Pay scale, we do not find any justification for accepting the claim for refixation of pension at Rs.40000 p.m., (50% of the Apex Scale) 16 Regarding the applicants contention that this benefit of apex scale has been extended by some of the State Governments to their similarly placed pensioners, the respondent no.2, in their written arguments, have submitted that the applicant cannot claim negative parity in privileges contrary to the rules. We also agree with it and thus do not find justification for grant of revised pension @ Rs.40000 p.m., solely on the ground that some of the States have given this benefit to their pensioners, particularly when the rules do not support it.
17 In view of the aforesaid, we do not find any justification for interfering with the impugned orders of respondents in the matter. Thus, the OA is dismissed with no order as to costs.
(G.P.Singhal) (Dhirendra Mishra) Administrative Member Judicial Member sk ??
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