Central Administrative Tribunal - Delhi
Vinod Kumar Jain vs The Secretary To The Govt. Of India on 9 November, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH: NEW DELHI OA No. 1552/2010 New Delhi This is the 9th Day of November, 2011 HONBLE MR. A.K. BHARDWAJ, MEMBER (J) Vinod Kumar Jain S/o late Shri Kailash Chandra Jain R/o 14-B, Pushpanjali Enclave, GMS Road, Kanwali, Dehradun 248001 Delhi-110007 .. Applicant (By Advocate: Sh. S.K. Gupta with Sh. Vikrm Singh) Versus
1. The Secretary to the Govt. of India, Ministry of Environment & Forest, Ex-officio Chairman of the Board of Government, India Council of Forestry Research & Education, Dehradun.
2. Indian Council of Forestry Research & Education, through Its Director General, ICFRE P.O. New Forest, Dehradun 248006.
3. The Director, Forest Research Institute, P.O. New Forest, Dehradun-248006. Respondents.
(By Advocate : Sh. Sanjay Katyal) Order (Oral) Applicant, who retired from service on 30.9.2005, filed the present OA assailing communication dated 8.2.2010 in terms of which his claim for further benefit of two additional increments at the time of fixation of his revised pension is declined. The said communication is placed on record as Annexure A-1 to OA reads as under:-
With reference to your representation dated 24.11.2009 for the grant of two additional increments for fixation of your revised pension consequent upon implementation of 6th CPC Recommendations w.e.f. 01.01.2006. It is to inform that your revised pension has been fixed corresponding to your previous pension & subject to the provision laid down under the Government of India, Deptt. of Pension and Pensioners Welfare O.M. No. F.N. 38/37/08-P&PW (A), dated 01.09.2008. The two additional increments had already been taken into account while fixation of pension at the time of your retirement. Since you had retired on 30.09.2005 i.e. prior to 01.01.2006, and were not in the service on 01.01.2006, as such benefits of two additional increments for the purpose of calculation of your revised pension does not arise.
2. In terms of circular dated 8.9.1995 the applicant was entitled to two additional increments in the following manner:-
The increments should be granted at the rate of increment in the scale of pay held by the employee on the date of absorption in the ICFRE. In case where the employee is at the maximum of the pay scale, the increment to be granted should be at the rate equal to the last increment drawn by the employee.
X X X X X On promotion of such an absorbed employee and on revision of pay scale by the Pay Commission, these additional increments should be allowed at the rate of increment at appropriate stage of the higher / revised pay scale.
3. In terms of aforementioned circular on promotion of an employee absorbed in ICFRE and on revision of his pay scale by Pay Commission additional increments were to be allowed to him at rate applicable for increments at appropriate stage of the higher / revised pay scale. Meaning thereby, an employee who is in service would over and above his revised pay, be entitled to additional increments also at the rate applicable in revised pay scale. However, in the present case since the applicant had retired w.e.f. 30.09.1995, there was no question of revision of his pay scale w.e.f. 1.1.1996. Only question to be determined by me in the present OA is, when, on the date of implementation of recommendation of 6th Central Pay Commission applicant was not in service as he had already retired w.e.f. 30.9.2005 and when at the time of fixation of his pension in pre-revised scale additional increments allowed to applicant were taken into account, whether at the time of revision of his pension, the additional increments could again to be taken on account. His retirement pension was fixed as per pension calculation sheet extracted herein below:-
1. Name V.K. Jain
2. Designation Scientist F
3. Date of Birth 10.9.1945
4. Date of entry in the Govt. Service 22.1.1966
5. Date of Retirement 30.9.2005
6. Length of qualifying service reckoned for pension / gratuity (As indicated in PPO) L.W.P w.e.f. 11.5.74 to 29.59.74 39Y 8M 10D (-) 19D 39Y 7M 21D
7. Emoluments drawn during the last 10 months.
(i) (1.12.2004 to 31.12.2004 @ Rs. 16300/- Rs. 800= 17,100+DP Rs. 850 Rs. 8550=25,690. (ii) 1.1.2005 to 30.9.2005 @ Rs. 17300/-+ Rs/ 8,650/-
+Rs. 900+Rs.450/-@ Rs. 17,300+900+200 +DP Rs. 9,100=27,300) 1.12.2004 to 31.12.2004 @ Rs. 16300/-+Rs. 8150/-+ Rs. 800/-+Rs. 400/-
8. 1. Average emoluments of pension as indicated in PPO)
2. Pension admissible Calculation to be shown as follows:
Average emoluments X Q. Service /2 27,300x9=Rs. 245,700 Rs. 2,71,350 :10= Rs.27,135/-
=27,135X1/2=Rs.13,567.50 Or say Rs. 13,568/-
9. (1) Emoluments for gratuity as indicated in PPO (2) Retirements gratuity admissible:
Emoluments XQ.
Service/4 (Rs. 17,300/-+Rs. 8,650/-
+Rs. 900/-+Rs.450/-
+Rs. 4641(DA@ 17%) Rs. 31,941/-
=31,941X66/4=Rs.5,27,026.50 or say Rs. 3,50,000/- (Maximum admissible)
10. (Emoluments for Family Pension (as indicated in PPO) (2) Family pension admissible calculation to be shown as follows:
(a) Ordinary Family pension Pay last drawn X prescribed % subject to prescribed minimum and maximum
(b) Enhanced family pension:
Family pension of ordinary rate as at (a) above X @, subject to prescribed minimum and maximum as per Rule, 54. Rs. 27,300/- p.m. Rs. 27,300X31/100= Rs. 8,190/- p.m. After 9.9.2012 i.e. from 10.9.2012.
Rs. 13,568/- p.m. Between 1.10.2005 to 9.9.2012
11. Commutation of pension:
Commutation of value: 13,568X 40/100=Rs. 5427.20 5,427X 12X 9.81=Rs. 6,38,866.44 or say Rs. 6,38,867/-
As can be seen from aforementioned, on his retirement, applicant was given benefit of two additional increments in fixation of his pension
4. Subsequent to implementation of recommendation of 6th Central Pay Commission, Govt. of India Ministry of Personnel, Public Grievance and Pension, Department of Personal & Training issued OM dated 1.9.2008 providing therein the method of computation of pension / family pension of existing Pre-2006 pensioner. Para 4.1 of the said OM reads as under:-
4.1 The pension /family pension of existing pre-2006 pensio9ners/family pensioners will be consolidated with effect from 1.1.2006 by adding together:-
The existing pension/family pension.
Dearness Pension, where applicable.
Dearness Relief upto AICPI (IW) average Index 536 (Base year 1982-100) i.e. @ 24% of Basic Pension /Basic family pension plus dearness pension as admissible vide this Departments O.M. No. 42/2/2006- P&PW(G) dated 5.4.2006.
Fitment weightage @ 40% of the existing pension / family pension. In para 4.2 of said order it was further provided that the fixation of pension was to be subject to the provision that the revised pension in no case, shall be less than 50% of the minimum of pay in the pay band plus grade pay corresponding to the pre-revised pay scale of the post from which pensioner had retire. In the case of HAG + and above scale, pension was to be 50% of the minimum of the revised pay scale. As far as claim of applicant in present OA is concerned, OM dated 1.9.2008 is relevant to the extent that in no case pension of applicant could be lower than 50% of the minimum of pay in the pay band plus grade pay corresponding to pre-revised pay scale of the post from which he had retired. As can be seen from pension calculation sheet reproduced herein above, on his retirement pension of the applicant was fixed after taking into account additional increments granted to him. On implementation of recommendation of 6th Central Pay Commission his pension was to be enhanced in terms of para 4.1 and para 4.2 of OM dated 1.9.2008 i.e. his pension could not be less than 50% of the minimum of pay in the pay band plus grade pay corresponding to the pre-revised pay scale of the post from which he had retired. As can be seen from the averment made by respondents in their rejoinder, on calculation of pension payable to applicant in terms of para 4.1 of OM dated 1.9.2008 amount of pension became payable to him was Rs. 22,251/- however, the 50% of minimum of pay in the pay band plus grade pay of the post from which the applicant had retired was to be 50% in the pay scale of 37400-67000 plus grade pay of Rs. 8900 i.e. Rs. 23,150/-. Implementing aforementioned provision contained in para 4.2 of OM dated 1.9.2008, respondents enhanced the pay of the applicant to Rs. 23,150/-. Para (iv) of the said rejoinder reads as under:-
(iv) that the contents of para No. (iv) of the rejoinder save and except the same being a matter of record, the remaining are wrong and hence denied. It is submitted that according to the provision contained in Ministry of Personnel, Public Grievances and Pensions O.M. No. 38/37/08-P&PW(A) dated 01.09.2008 (Annexure-R-II with the counter affidavit already filed) the pension of pre-2006 pensioners/family pensioners will be consolidated with effect from 01.01.2006 adding together the amount of the components stated below and amount so arrived at will be regarded as consolidated pension /family pension w.e.f 01.01.2006:-
The existing Pension /Family Pension Dearness Pension where applicable Dearness Relief 24% of Basic Pension Fitment weightage 40% of existing pension/ family pension. Further according to clause 4.2 of the said O.M. 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 o the pay in the pay band plus the grade pay corresponding to the pre-revised pay scale from which the pensioner had retired.
It is submitted that the pre-revised pay scale of the applicant was Rs. 16,400-450-20,000 which is revised as Rs. 37,400-67000 with grade pay of Rs. 8,900/-. Accordingly, pension of Shri V.K. Jain has been revised as under:-
Calculation of Revision of pension of th Applicant as on 01.01.2006.
(i) Basic pension *Rs. 13,568/- Initially fixed on his retirement on 30.09.2005 which includes benefits of two additional increments.
(ii) Dearness Relief 24% of BP Rs. 3,256/-
(iii) Fitment weihtage 40% of pension Rs. 5,427/-
Total consolidated Pension Rs. 22,251/-
*The basis pension of Rs. 13,568/- already include the benefit of two additional increments. Thus, the consolidated pension of Shri V.K. Jain works out to Rs. 22,251/-. However, his pension so worked out is less than 50% of the minimum of the pay in the pay band Rs. 37,400-7,000 plus grade pay of Rs. 8900/- (Which is corresponding to the pre-revised pay) i.e. Rs. 23,150/-. Therefore, in accordance with the provisions of para 4.2 of O.M. dated 01.09.2008 his pension has been revised to Rs. 23,150. The claim of applicant for grant of two additional increments in revised pay band over and above the amount of Rs. 23,150/- is not supported by any provision of law. AS can be seen from pension calculation sheet, on retirement of applicant w.e.f 30.09.2005 the respondents had taken into account two additional increments + DA while fixing his pension. Thus, applicant is not correct in taking plea that the respondents had ignored additional increments while fixing his pension. In the said OM dated 1.9.2008 it was mentioned that the pension /family pension of Pre-2006 pensioner was to be consolidated in the manner indicated in para 4.1 thereof. If in case of such consolidation it could be found that any employee could draw the pension less than 50% of minimum of pay in the grade pay + pay band corresponding to pre-revised pay scale from which he had retired, his pension was to be enhanced to bring it to aforementioned amount. Respondents have already given such benefits to the applicant. In the case of Union of India Vs. S.R. Dhingra & Ors. SLR 2008(2) wherein running allowances was taken into account at the time of computing his pension on retirement, the respondent had raised plea that said running allowances was to be added while fixing pay notionally as per OM dated 1.9.2008. Considering aforementioned facts Honble Supreme Court viewed that the running allowance could be taken into account for computing pension only once. Para 3, 14, 23 and 24 of the judgment reads as under:-
3. The facts of the case are that in the Railways there are certain employees such as drivers, guards, shunters etc., who go along with the railway train and are categorized as Running Staff. Such staffs are entitled to an allowance called Running Allowance which is apart from their salary. Computation of pension after retirement in the railways is made on the basis of average emoluments plus a part of the running allowance which is included in average emoluments in terms of Rule 2544(g) of the Indian Railway Establishment Code. The present dispute relates to the pension for the running staff who retired prior to 1986.
14. Due to certain doubts and confusion, a clarification was sought as to whether running allowance was to be added again while fixing the pay notionally as per the OM dated 10.2.1998. On 29.12.1999, the Railway Board issued clarification the running allowance was not to be taken into consideration at the time of re-fixation of pay of notional basis on 1.1.1986.
23. We are of the opinion that the clarification of the Railway Board issued dated 29.12.1999 clarifying that the running allowance which was already taken into account for pension and other benefits at the time of retirement is not to be added to the pay of pre-1986 retirees revised on notional basis as on 1.1.1986 is valid. It appears that due to a clerical error the notional benefits of the respondents w.e.f. 1.1.1986 was wrongly fixed and such retired employees are getting excess pension. It is well-settled that a mistake does not confer any right to any party, and can be corrected.
24. We are of the opinion that the benefit of running a allowance has to be taken into consideration for computing pension only once. It had been taken into consideration while filing the pension only once. It had been taken account again for any future calculation. In the case of Col. B.J. Akkara retd. Vs. Govt. of India & Ors (2006(11) SCC p.709, Honble Supreme Court further viewed that when NPA had already been taken into account while calculation existing pension of Medical Officers who retired before 1.1.1986, it could not be added again at the time of revision of their pension. In the said case Honble Supreme Court further ruled that the intention of OM dated 7.6.1999 was limited only to ensure that the pension of Pre 96 retire should not have been less than 50% of minimum pay in revised scale. Paras 11 to 17 of the judgment read as under:-
11. We may first refer to the intent and purport of the Circular dated 7.6.1999. The Circular dated 7.6.1999 neither prescribes the requirements/qualifications for entitlement to pension nor the method of determination of pension. It only effectuates the Presidents decision that the pension (which has already been determined in accordance with the applicable rules/orders) irrespective e of the date of retirement, shall not be less than 50% of the minimum pay in the revised scales o9f pay introduced with effect from 1.1.1996. Pension is determined as per relevant rules/orders, by calculating the average of reckonable emoluments (basic pay, Rank Pay and NPA) drawn during the last 10 months of service and then retirees with 33 years of qualifying service, with proportionate reduction for retirees with lesser period of qualifying service, with proportionate reduction for retirees with lesser period of qualifying service. The basis for calculating the pension in respect of those who retired prior to 1.1.1996, and those retired on or after 1.1.1996 happens to be the same. The retiring pension is 50% of the average reckonable emoluments for retirees with 33 years of qualifying service, with proportionate reduction for those with lesser years of qualifying service. The Presidents decision given effect by Circular dated 7.6.1999 only extends to all pre 1996 retirees, who did not have the benefit of fixation of a pension with reference to the revised pay scales which cam into effect on 1.1.1996, the benefit of the said revised pay scales, albeit in a limited manner. In so doing, it retirees on par and on a common platform, removing the disparity, if any, in their pensions.
12. When the Fifth Central Pay Commission recommendations were implemented, the pension of those who retired prior to 1.1.1996, was rationalized by directing that their pension shall be the aggregate of (a) existing pension; (b) dearness relief; (c) interim relief I; (d) interim relief II, and (e) fitment weightage of 40% of the existing pension. The existing pension referred to therein was the pension which had been arrived at by calculating 50% of the average pay, NPA and Rank Pay during the last 10 months of service. The Circular dated 7.6.1999 made it clear that pension of retirees shall continue to be calculated at 50% of average of reckonable emoluments for the last 10 months before retirement, but only stipulated that the full pension (that is pension for 33 years service) shall not be less than the 50% of the minimum pay in the revised pay scale introduced with effect from 1.1.1996. The Circular dated 7.6.1999 also made it clear that if the minimum prescribed therein was not beneficial to the pensioner, that is, where it was either equal to or less than the existing consolidated pension, his pension will not be reduced to his disadvantage. In short, the Circular dated 7.6.1999, merely stepped up the pension (for a qualifying service of 33 years) to 50% of the minimum pay in the revised scale of pay introduced with effect from 1.1.1996 of the rank held y such pensioner, where his pension was less. We may here note that whenever the reference is to stepping up pension to 50% of the minimum pay in the revised scale of pay, it applies to those with 33 years of qualifying service and gets proportionately reduced for lesser period of qualifying service.
13. The emoluments of those who retired on or after 1.1.1996, calculated with reference to the basic pay in the revised scale of pay plus NPA will certainly be more than the minimum pay in the revised scale of pay and therefore, in their cases, the question of stepping up will not arise. On the other hand, as the pension of pre-1996 retirees was based on the basic pay under the old pay scale plus NPA, and as the old pay scale was much less than the 1996 revised pay scale, their pension required to be stepped up. The extent to which the existing pension should be stepped up is clearly specified in the Circular as minimum pay in the revised scale of pay. The words used do not give room for any confusion or doubt. A pay scale has basically three elements . The first is the minimum pay or initial pay in the pay scale. The second is the periodical increment. The third is the maximum pay in the pay scale. An employee starts with the initial pay in the pay scale and gets periodical increases (increments) and reaches the maximum or ceiling in the pay scale. Each stage in the pay scale starting from the initial pay and ending with the ceiling in the pay scale, when applied to an employee is referred to as basic pay of the employee. Whenever the government revises the pay scales, a fitment exercise takes place as per the principle of fitment (formula) provided in the rules governing the revision of pay so that the basic pay in the old scale is converted into a basic pay in the revised pay scale. When the circular dated 7.6.1999 used the words 50% of the minimum pay in the revised scale of pay, it referred to 50% of the initial pay in the revised scale of pay. If the old scale of pay was Rs. 7300-100-7600 and if the revised scale of pay was Rs. 22400-525-24500, the minimum pay in the revised scale of pay would be Rs. 22400 and 50% of the minimum pay in the revised scale of pay would be Rs. 11200/-.
14. It is no doubt true that the term pay, with reference to medical officers, includes the basic pay and NPA. But the term basic pay does not include NPA. In the absence of any special definition, the term basic pay of a government servant refers to the applicable stage of pay in the pay scale to which he is entitled, and doe4s not include NPA even in the case of Medical Officers. What the circular dated 7.6.1999 intended to extend by way of benefit to all pensioners, was a minimum pension, that is, 50% of the minimum pay in the 1996 revised scale of pay. NPA has no part to play in the minimum that is sought to be assured. NPA has relevance only for initial fixation of pension and not for stepping up pension under Circular dated 7.6.1999.
15. As a result, if the pension of a retiree is determined by taking into account NPA as part of pay and the pension so determined is more than 50% of minimum pay in the revised scale of pay, he would continue to get such higher pension. This would happen in the case of all those who retired on or after 1.1.1996. If the pension determined by taking into account NPA as part of pay, is less than 50% of the minimum pay in the revised scale of pay, his pension would be stepped up to 50% of the minimum pay in the revised scale of pay. This would happen in the case of pre 1996 retirees.
16. The petitioners want to read the words not less than 50% of the minimum pay in the revised scale of pay in the Circular dated 7.6.1999, as not less than 50% of the minimum pay in the revised scale of pay plus NPA. When the language used is clear unambiguous and the intention is also clear, it is not permissible to add words to the Circular dated 7.6.1999 to satisfy what petitioners consider to be just and reasonable. Minimum pay in the revised scale of pay refers only to the initial pay in the revised scale of pay and not anything more. ? Due to a misinterpretation, NPA was included for the purpose of giving the benefit of stepping up the pension in the case of retired medical officers. The fact that NPA had already been taken into account while calculating the existing pension of the medical officers who retired before 1.1.1996 was lost sight of. The fact that NPA is part of pay and not part of basic pay was also overlooked. Therefore, it became necessary to issue the clarification, which was done by circular dated 11.9.2001, clarifying that it was impermissible to again add NPA to the minimum pay in the revised pay scale for the purpose of stepping up the pension.
17. Another grievance of the petitioners is that prior to circular dated 7.6.1999, the pay and pension of medical officers was always more than the pay and pension of non-medical officerf of the same rank, in view of NPA element, and by virtue of the clarificatory circular date 11.9.2001, the pension of both categories, (Medical OOfficers and non-Medical Officers), who retired prior to 1996, became equal. The petitioners contend that even after stepping up under Circular dated 7.6.1999, the disparity which earlier existed between Medical Officers and Non Medical Officers of the same rank, should be maintained. They point out that if the pension of medical officers and non-medical of the same rank should be the same, the purpose of giving NPA as part of pay to Medical Officers was defeated and NPA became illusory. We cannot agree. When the purpose of stepping up pension is to ensure that all retirees of the same rank get pension which is not less than the prescribed minimum, it would be unjust for a section to say that merely because they were earlier enjoying a higher pension than others of the same rank, such disparity should be continued, even after stepping up. When the object of stepping up of pension is to bring in parity and avoid disparity, the claim of petitioners that disparity should be continued cannot be accepted. Also in the present case the two additional increments of the applicant were taken into account at the time of fixation of his pension originally, thus, he was getting pension higher than others, who retired from a post in the same pay scale. When in terms of OM dated 1.09.2008 every Pre-2006 pensioner got equal pe3nsion i.e. 50% of minimum pay band + grade pay at the post from which he retired, the applicant, whose pension also got increased felt in loss because, the pension of others who were earlier getting lesser pension than him also received increased pension equivalent to him. Such feeling of applicant is psychological, as he has considered the benefit of others as his loss, or he wish to draw higher pension than others for all times. Had the additional increments drawn by applicant been not taken into account at the time of fixation of his pension, same could be Rs. 13,118/- and not Rs. 13,568/- similarly consolidated revised pension could also be less by Rs. 782/- i.e. 21,469/- instead of 22,291/-. Thus, the additional increments of the applicant were duly taken into account at the time of fixation of his pension originally and also at the time of consolidated revision of pension.
In view of the above, I find no merit in the case. OA is accordingly dismissed. No costs. (A.K. Bhardwaj) Member (J) /rb/