Central Administrative Tribunal - Mumbai
Dr. K.R. Munim vs Union Of India Through on 22 February, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
BOMBAY BENCH, MUMBAI.
ORIGINAL APPLICATION NO.: 780/2009, 781/2009, 782/2009, 783/2009, 784/2009, 785/2009, 786/2009, 47/2010 and 48/2010.
Dated this Tuesday, the 22nd day of February, 2011.
CORAM : Hon'ble Shri Jog Singh, Member (J).
Dr. K.R. Munim
Flat No.1, Samruddhi,
Halfkine Co-op. Housing
Society, Relief Road
Shastri Nagar,
Santacruz (West),
Mumbai 400 054. ... Applicant in OA 780/09
Swayam Prakash Srivastava
15, Swagat Plot No.2A,
Sector -9A, Vashi,
Navi Mumbai 400 703. ... Applicant in OA 781/09
H. Sadananda Kamath
21, Deonar House,
Deonar Village Road,
Deonar, Mumbai 400 088. ... Applicant in OA 782/09
Surendra Sharma
15, Vikram Jyoti Co-
operative Housing Society,
V.N. Purav Marg, Deonar,
Mumbai 400 088. ... Applicant in OA 783/09
Virendra Kumar Sharma
42, Deonar House, Deonar
Village Road, Deonar,
Mumbai 400 088. ... Applicant in OA 784/09
Dr. Gyan Chand Jain
61, Deonar House, Deonar
Village Road, Deonar,
Mumbai 400 088. ... Applicant in OA 785/09
Dr. Shriram Balkrishna Manohar
114/3933 Tilak Nagar,
Mumbai 400 089. ... Applicant in OA 786/09
Dr. Surya Deo Mishra
62, Deonar House, Deonar
Village Road, Deonar,
Mumbai 400 088. ... Applicant in OA 47/2010
Dr. Bhoopendra Narayan Rathi
32, Kartik, 12th Road,
Chembur,
Mumbai 400 071. ... Applicant in OA 48/2010
(By Advocate Shri R.C.Kotiankar )
VERSUS
1. Union of India through,
The Secretary to Govt. of
India, Department of Pension
& Pensioners Welfare, Lok
Nayak Bhuvan Khan Market,
New Delhi 110 003.
2. Secretary to Govt. of
India, Department of
Automic Energy, Anushakti
Bhavan, C.S. M. Marg,
Mumbai 400 001.
3. Pay & Accounts Officer
Central Pension Accounting
Authority, Trikoot II
Complex, Bhikaji Cama
Palace, Behind Hotel
Regency, New Delhi- 110 006. ... Respondents
4. Pay & Accounts Officer,
Heavy Water Board,
Department of Automic
Energy, V.S. Bhavan
4th Floor, Anushakti
Nagar, Mumbai 400 094. ... Respondent No.4 in OA 781/09, 782/09, 783/09
5. Pay & Accounts Officer,
Bhabha Automic Research
Centre, Central Complex,
Mumbai 400 098. ... Respondent No.4 in OA 780/09, 785/09, 786/09,47/10,48/10
6. Pay & Accounts Officer,
Nuclear Power Corporation of
India Ltd., Department
of Automic Energy,
V.S. Bhavan, 4th Floor,
Anushakti Nagar,
Mumbai 400 098. ... Respondent No.4 in OA 784/09
(By Advocate Shri V.S.Masurkar &
Advocate Smr.H.P.Shah)
O R D E R
Per: Shri Jog Singh, Member (J)
All the Applicants have raised a common grievance against the same respondents. Therefore, with the consent of the parties, the matters are heard together and are being disposed of by this common order.
2. For the sake of convenience, the case of the applicant in O.A. No. 780/2009, namely Shri Dr. K. R. Munim, is taken up for consideration as a representative case. The applicant has precisely prayed for the following reliefs -
(a) To declare that the pensioners who retired prior to and after 1.1.2006 constitute one category and, therefore, are entitled for parity both in the method of computation/amount of pension.
(b) To declare that the impugned Government Orders laying down different criteria in the matter of fixation of pre-2006 retirees following revision of scales of pay pursuant to Sixth Central Pay Commission's recommendations are contrary to the provisions under Pension Rules, 1972.
(c) To declare that the pay of the applicant be notionally fixed in the revised scale of pay at an amount equal to his corresponding pay in the pre-revised scale of the post held by him at the time of his requirement in the same manner as is done in the case of similar officers of the same rank retired after 1.1.2006.
(d) To declare that the applicant is entitled to pension at 50% of his notional pay at an amount equal to 50% of his emoluments i.e 50% of his notional pay so arrived in the manner as is done in the case of similar officers of the same rank retired after 1.1.2006 or average emoluments thereof, whichever is more beneficial.
(e) To declare that the applicant is entitled to arrears due on account of revision of his pension and other consequential benefits w.e.f. 1.1.2006 and interest thereon @ 18% per annum w.e.f the date the arrears are due until their actual payment.
3. The facts of the case in O.A. 780/2009 are that the applicant, who is a Doctor (Dentist), joined the service of the respondents as a Scientific Officer (Grade SD-1) in the pay scale of Rs.700-1250 on 24.11.1965. He was subsequently promoted to various posts and finally to that of Scientific Officer (Grade-G) in the pay scale of Rs.5900-6700 w.e.f. 02.09.1996. As a consequence of the recommendations of the Fifth Pay Commission, the post of Scientific Officer (Grade-G) was designated as Scientific Officer GradeH with pay scale of Rs.18,400-22,400. The applicant was accordingly placed in the said Grade w.e.f. 02.09.1996 with 25% NPA, i.e., Non-Practising Allowance. He was given Special Pay of Rs.2000/- per month w.e.f. 01.08.2000. He retired on attaining the age of superannuation on 31.3.2001 and at that time he was drawing basic pay of Rs.20,900/- per month plus 25% NPA plus Special Pay of Rs. 2000/- per month.
4. The applicant submits that the pension of a Government servant who retired prior to 01.01.1996 was being calculated at 50% of basic pay drawn during the last 10 months preceding his retirement and the amount of pension was determined with reference to the qualifying service. Those with 33 years of qualifying service were entitled to full pension, i.e., 50% of average emoluments. It is submitted by the applicant that he had put in over 33 years of qualifying service under the Government.
5. The applicant's pension on retirement was fixed at Rs. 12,813/- per month. Besides, he was getting Dearness Pay and Dearness Relief, etc., as applicable w.e.f. 01.04.2001. The applicant states that subsequent to Government of India's decision of taking into account Special Pay for counting pensionary benefits, the Special Pay drawn by him preceding his retirement has been added to his pension thereby raising it from Rs. 12,813/- to Rs. 13,613/- per month w.e.f. 01.04.2001 vide Amendment No. BARC/PEN/6610/2006/636 dated 8.6.2006.
6. The applicant further states that following the recommendations of the Sixth Central Pay Commission, the scale of pay of the post held by him at the time of his retirement has been revised to Rs. 37,400-67,000/- with a Grade Pay of Rs. 10,000/-; 25% NPA and Special Pay of Rs. 4000/- per month. Pursuant to Government Orders on revision of pension of Pre-2006 Pensioners/Family Pensioners, his pension has been revised to Rs. 28,959/- per month w.e.f. 01.01.2006 vide amendment dated 28.05.2009. The applicant contends that his notional pay in the revised scale of pay corresponding to his pre-2006 pay works out to Rs. 77,588/- per month, i.e., Rs. 58,870/- + Rs. 14,718/- per month and 25% NPA and Special Pay of Rs. 4000/- per month. As such, he is entitled to revised pension of Rs. 38,794/- per month (i.e. 50% of Rs. 77,588/-) w.e.f. 01.01.2006. He is, however, being paid pension at Rs. 28,959/- per month only w.e.f. 01.01.2006. The applicant, therefore, claims that he is being paid less pension viz. Rs. 9,835/- per month and Dearness Pay , Dearness Relief, etc. as admissible w.e.f. 01.01.2006 onwards in the cases of post 01.01.2006 retirees.
7. According to the applicant, this anomaly has occurred due to Government of India's decision to fix pension of those retired prior to 01.01.1996 based on a multiplication factor of 2.26, i.e., basic pension and Dearness Relief of 24% plus 40% of basic pension as on 01.01.2006 or 50% of minimum of pay in the Pay Band and 50% Grade Pay corresponding to the pay in the pre-revised scale of pay of the posts held by the pensioners at the time of their retirement. In the case of HAG+ and above scales, the pension is 50% of minimum of the pay in the revised scale, instead of 50% of notional pay in the revised scale of pay as corresponding to pay in the pre-revised scale of pay of the posts held by the pensioners at the time of their retirement. The applicant has preferred several representations to the respondents, as annexed at Annexure A-7, A-8 and A-9 of the O.A., to set right the anomalies but the same were of no avail and, hence, he has approached this Tribunal by way of present O.A.
8. The applicant has drawn the Tribunal's attention to Rule 49(2)(a) of Central Civil Services (Pension) Rules, 1972, (hereinafter referred to as 'Pension Rules, 1972') wherein it has been stated that in case of a Government servant retiring after completing qualifying service of not less than 33 years, the amount of pension shall be calculated at 50% of average emoluments subject to a maximum of Rs. 4,500/- per month, the maximum amount of pension has been enhanced to Rs.15,000/- per month w.e.f. 01.01.1996 and to Rs.45,000/- per month w.e.f. 01.01.2006. Under Rule 33 of the said Pension Rules, 1972, emoluments mean basic pay as defined in Rule 21(a)(1) of Fundamental Rules drawn by a Government servant at the time of his retirement. Under Rule 34 of the said Rules, the average emoluments shall be determined with reference to emoluments drawn by a Government servant during the last 10 months preceding his retirement.
9. It is the case of the applicant that the Government of India's decision is also in variance with the provisions of Rules 49(2)(a) and 34 of the Pension Rules, 1972, and, therefore, the same is arbitrary and violative of Articles 14 and 21 of the Constitution. The applicant has placed firm reliance on the decision of the Hon'ble Supreme Court in the case of Union of India & another Vs. S.P.S.Vains (Retd.) & others [2008 (9) SCC 125 decided on 09.09.2008. Similar is the case of the applicants in other connected O.As. and they also claim the same reliefs.
10. The respondents, in their reply, have stated that revision of pension and revision of pay are based on policy decisions of the Government, and as such, they cannot be challenged before the Tribunal. The pay fixation of the applicants in these cases is governed by the CCS (Revised Pay) Rules, 1997, whereas fixation of their pension is governed by CCS (Pension) Rules, 1972. The employees retired prior to 01.01.2006 and after 01.01.2006 are 2 separate sets of employees governed by different Pay Rules and, therefore, no comparison can be drawn between them. The revision of pay and pension are a result of acceptance of the periodical recommendations of Pay Commission, which is an expert body constituted for that purpose. They also state that when two sets of employees of the same rank retire at different points of time, they cannot claim benefit extended to the other set of employees on the ground that they are similarly situated. Though they may retire with the same rank, they are not of the same class and, hence, Article 14 of the Constitution has no application.
11. The respondents contend that the employer can validly fix a cut-off date for introducing any new pension/retirement scheme or for discontinuance of any existing scheme. According to Government of India's OM No.38/37/08-P&PW(A) dated 11.02.2009, fixation of pension will be subject to the provision that the revised pension is in no case lower than 50% of the minimum of the pay in the Pay Band and the Grade Pay corresponding to the pre-revised pay scale from which the pensioner had retired. In case of HAG+ and above scales, this will be 50% of the minimum of the revised pay scale. It has been clarified in the O.M. dated 03.10.2008 that the pension calculated at 50% of the minimum of pay in the Pay Band and Grade Pay would be calculated at the minimum of the pay in the Pay Band and the Grade Pay corresponding to the pre-revised pay scale in accordance with the instructions contained in para 4.2 of the Department's O.M. of even number dated 01.09.2008. The fixation of pension, however, will be subject to the provision that the revised pension in no case shall be lower than 50% of the minimum of the pay in the Pay Band and the Grade Pay corresponding to the pre-revised pay scale from which the pensioner had retired. Further, Department of Pension & Pensioners' Welfare have vide O.M. dated 19.03.2010 clarified that orders relating to revision of pension of pre-2006 pensioners/family pension are issued as per the recommendations of the Sixth Central Pay Commission. 11.1 It has also been mentioned in the O.M. dated 03.10.2008 that the pension calculated at 50% of the minimum of pay in the Pay Band and Grade Pay would be calculated at the minimum of the pay in the Pay Band irrespective of the pre-revised pay scale. The pension will be reduced pro-rata, where the pensioner had less than the maximum required service for full pension as per Rule 49 of the Pension Rules, 1972, as applicable on 01.01.2006 and in no case it will be less than Rs. 3,500/- per month. In case the pension consolidated as per para 4.1 of the O.M. No.38/37/08-P&PW(A) dated 01.09.2008 is higher than the pension calculated in respect of the particular pensioner and the same is treated as basic Pension, the minimum revised pension that would be admissible to a past pensioner in terms of para 4.2 of the OM dated 01.09.2008 for each pre-1996/pre-2006, pay scales were indicated in the Table at Annexure-I of Department of Pension & Pensioners' Welfare O.M. dated 14.10.2008.
12. The respondents, thus, submit that the pension of the applicants was fixed as per O.M. dated 01.09.2008 issued by Ministry of Personnel, Public Grievances & Pensions. The said OM was implemented by the Respondents since it was a Government of India's decision and the Research Centre does not have the power to overrule the Government of India's orders. The Government, in exercise of power under Articles 77, 309 and 148 of the Constitution of India, has taken a policy decision to revise the provisions for determination of pay of the Government servants w.e.f. 01.01.2006 which has resulted in higher pension of prospective pensioners. This policy is not discriminatory as it accords different benefits to the pensioners of pre-2006 and post-2006, based on their respective date of retirement.
13. The applicants have submitted written arguments reiterating most of their contentions. The applicants state that they form a homogeneous class and the criteria for upward revision of an existing scheme entitling the benefit of the revision to those retiring after that date while depriving the said benefits to those retired prior to that date is arbitrary.
14. Heard the learned counsel for the parties and perused the pleadings and documents annexed with the O.A.
15. Undoubtedly, the applicants in the instant case are governed by the provisions of Rule 49 read with the provisions of Rules 33 and 34 of the CCS (Pension) Rules, 1972, which are as under -
49. Amount of Pension (1) In the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of ten years, the amount of service gratuity shall be calculated at the rate of half month's emoluments for every completed six monthly period of qualifying service.
(2) (a) In the case of a Government servant retiring in accordance with the provisions of these rules after completing qualifying service of not less than thirty-three years, the amount of pension shall be calculated at fifty per cent of average emoluments, subject to a maximum of four thousand and five hundred rupees per mensem.
(b) In the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of thirty-three years, but after completing qualifying service of ten years, the amount of pension shall be proportionate to the amount of pension admissible under Clause (a) and in no case the amount of pension shall be less than Rupees three hundred and seventy-five per mensem.
(c) notwithstanding anything contained in Clause (a) and Clause (b), the amount of invalid pension shall not be less than the amount of family pension admissible under sub-rule (2) of Rule 54.
(3) In calculating the length of qualifying service, fraction of a year to three months and above shall be treated as completed one half, year and reckoned as qualifying service.
(4) The amount of pension finally determined under Clause (a) or Clause (b) of sub-rule (2), shall be expressed in whole rupees and where the pension contains a fraction of a rupee it shall be rounded off to the next higher rupee. 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 officers in lieu of private practice. 34. Average Emoluments.
Average emoluments shall be determined with reference to the emoluments drawn by a Government servant during the last ten months of his service.
16. The question that arises for consideration is as to whether the benefit of revised pay pursuant to recommendations of the Sixth Central Pay Commission and consequent pension should be extended to persons who have retired prior to 2006? The applicants herein claim that excluding them from the benefit of pay revision creates an impermissible classification without any rationale between those retired on or after 01.01.2006. They state that such classification is arbitrary, discriminatory and violative of Article 14 of the Constitution.
17. In this regard, a plain reading of the Constitutional provisions would reveal that the concept of discrimination, as propounded in the Indian Constitution, presupposes classification of similarly situated persons into different groups without any reasonable basis, for extending dissimilar benefits or treatment. As persons retired on or after 01.01.2006 and those who retired prior to 01.01.2006 are not of the same class, notwithstanding that they may be of similar ranks/grades; different yardsticks could, prima facie, be applied to them. Moreover, in service jurisprudence, 'Pension' and 'Pay' are two distinct and different aspects. Both are governed by separate set of Rules. The pay of the employees is governed by CCS (Revised) Pay Rules as amended from time to time whereas the pension of retired employees is governed by the CCS (Pension) Rules, 1972, as may be amended from time to time.
18. The applicants could have complained of discrimination only if a benefit had been introduced retrospectively by fixing a cut-off date arbitrarily; thereby dividing a single homogeneous class into two groups and subjecting them to different treatments. That is not the case here. The date 01.01.2006 for extending the benefit of pay revision has been fixed by expert body like the Pay Commission. In a catena of decisions, the Hon'ble Apex Court has held that the date is fixed by the executive authorities keeping in view the economic conditions, financial constraints and many administrative and other attending circumstances and, therefore, it is expected from Courts/Tribunals to exercise and maintain judicial restraint in matters relating to legislative and executive domain. In this context, it is pertinent to refer to the decision of the Hon'ble Supreme Court in the case of Government of Andhra Pradesh & others Vs. N.Subbarayudu & others, [2008 (4) SLR 136], relevant paras of which are quoted below -
5. In a catena of decisions of this Court it has been held that the cut off date is fixed by the executive authority keeping in view the economic conditions, financial constraints and many other administrative and other attending circumstances. This Court is also of the view that fixing cut off dates is within the domain of the executive authority and the Court should not normally interfere with the fixation of cut off date by the executive authority unless such order appears to be on the face of it blatantly discriminatory and arbitrary.
6. No doubt in D.S.Nakara & others Vs. Union of India, 1983 (1) SCC 305, this Court had struck down the cut off date in connection with the demand of pension. However, in subsequent decisions this Court has considerably watered down the rigid view taken in Nakara's case (supra).
19. In N. Subbarayudu (supra), the Hon'ble Supreme Court was dealing with the case of Lecturers in Private College. The age for superannuation was reduced from 60 to 58 years by amendment of the Education Code in 1993. Some retiree Lecturers preferred a Writ Petition challenging the cut-off date 01.11.1992 fixed by the Government for the purpose of pension as arbitrary and discriminatory. The Hon'ble High Court allowed the Writ Petition and on being challenged the same before Hon'ble Supreme Court, the judgment of Hon'ble High Court was reversed.
19.1 It is evident from the reading of above paras 5 and 6 of the judgment of Hon'ble Supreme Court in N. Subbarayudu that in the ordinary course the Tribunal shall not interfere in the matter of a cut-off date unless the applicants make out a case of glaring discrimination and violation of the principle of equality as envisaged under Articles 14 and 16 of the Constitution of India. It is also evident from the said judgment of the Hon'ble Supreme Court that rigidity of the ratio of D.S. Nakara (Supra) has been considerably diluted in a catena of subsequent judgments by Hon'ble Supreme Court itself. Therefore, the Tribunal has to maintain judicial restraint in matters relating to the legislative or executive domain.
20. Furthermore, the provisions of the CCS (Pension) Rules are rank-neutral and class-neutral. In cases of all the retirees, pension is basically determined as per the provisions of Rule 49 of the CCS Pension Rules read with the provisions of Rules 33 and 34 thereof which have been reproduced above. That has been done in the case of the applicants. As such there is no case of any discrimination. Also, there is no provision in the Pension Rules for extending the benefit of pay revision retrospectively and, hence, the pay revision which has become effective from 01.01.2006 cannot be ipso facto and in toto made applicable to the present applicants, who have retired prior to 01.01.2006.
21. The reliance placed by the applicants on the decision in the case of Union of India & Another Vs. Maj. Gen. S.P.S. Vains [2008 (9) SCC 125] is also of no help to the applicants because the Department of Pension & Pensioners' Welfare have issued O.M. dated 18.11.2009 clarifying that the said decision will not apply in the cases of pensioners who retired from the civil departments and who, before their retirement, were governed by the CCS (Pension) Rules, 1972. The same, as reflected in AISLJ (May) 2010 Page 5, is reproduced as under for the sake of convenience -
Copy of OM F.No.38/37/08-P&PW(A), dated 18.11.2009 (Department of Pension & Pensioners' Welfare) Subject: Revision of pension on the recommendations of the Pay Commission Applicability of the judgment of Hon'ble Supreme Court in C.A.No.5566 of 2008 in the case of Civil Pensioners.
In the judgment dated 9.9.2008 in C.A. No.5566 of 2008 (SLP Civil) No.12357 of 2006) UOI Vs. Maj.Gen.SPS Vains, Hon'ble Supreme Court has directed that pay of all pensioners in the rank of Major General and its equivalent rank in the two other Wings of the Defence Services be notionally 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, to compute their pensionary benefits on such basis with prospective effect from the date of filing of the writ petition.
2. Some representations have been received in this Department pensioners/ pensioners' associations suggesting that the pension of pensioners who retired from the civil departments and who, before their retirement, were governed by the CCS (Pension) Rules, 1972, may be revised by applying the ratio of the aforesaid judgment of the Apex Court. These representations have been examined in consultation with Ministry of Finance and Ministry of Law.
3. The undersigned is directed to say that the judgment dated 9.9.2008 in CA No.5566 of 2008 SLP (Civil) No.12357 of 2006) UOI Vs. Maj.Gen.SPS Vains will not apply in the case of pensioners who retired from the civil departments and who, before their retirement, were governed by the CCS (Pension) Rules, 1972. 21.1 In the case of S.P.S. Vains (supra), the Hon'ble Supreme Court was dealing with a different situation altogether. The dispute arose mainly because of the disparity in determination of pre 01.01.1996 and post 01.01.1996 retirees who retired from defence services as Major General or equivalent posts. The pension of a Major General, who retired prior to 01.01.1996, was the same as that of a Brigadier. However, in case of those Major Generals who retired after 01.01.1996, their pay was initially fixed according to Clause 12(c) of Special Army Instruction 2/S/1998 which enabled them to draw higher pension than those who retired before 01.01.1996.
21.2 The Hon'ble High Court directed the Government to fix minimum pay scale of the Major General above that of the Brigadier and grant pay above that of a Brigadier as has been done in the case of post 01.01.1996 retirees and consequently fix pension and family pension accordingly. The Government preferred an SLP against the direction of the Hon'ble High Court. In this background the Hon'ble Supreme Court considered the issue as to whether there could be disparity in payment of pension to officers of the same rank, who retired prior to introduction of revised pay scales from 01.01.1996 with those who retired thereafter.
21.3 In fact, the disparity in the case of S.P.S. Vains arose because of the stepping up of the pay of Brigadier by bringing the same at par with that of Major General. The pay fixation was done as per Special Army Instructions. In this context, it is pertinent to note Paras 26 and 27 of the judgment of Hon'ble Supreme Court in the case of S.P.S. Vains wherein it is specifically noted by the Hon'ble Supreme Court that - The said decision of the Central Government does not address the problem of disparity having been created within the same class so that two officers both retiring as Major Generals, one prior to 01.01.1996 and the other after 01.01.1996, would get two different amounts of pension. While the officers who retired prior to 01.01.1996 would now get the same pension as payable to a Brigadier on account of the stepping up of pension in keeping with the fundamental rules, the other set of Major Generals who retired after 01.01.1996 will get a higher amount of pension since they would be entitled to the benefit of the revision of pay scales after 01.01.1996. It would be arbitrary to allow such a situation to continue since the same also offends Article 14 of the Constitution. 21.4 In this background, the Hon'ble Supreme Court held in the case of S.P.S. Vains that there was violation of Article 14 of the Constitution of India and directed as under :
The object sought to be achieved was not to create a class within a class, but to ensure that the benefits of pension were made available to all persons of the same class equally. To hold otherwise would cause violence to the provisions of Article 14 of the Constitution. It could not have been the intention of the authorities to equate pension payable to officers of two different ranks by resorting to step up principle envisaged in fundamental rules in a manner where the other officers belonging to the same cadre would be receiving a higher pension. The appeal is accordingly dismissed but the High Court order is modified. The Government is directed that pay of all pensioners in the rank of Major General and its equivalent rank in the two other wings of Defence Services be notionally fixed at the rate given to similar officers of the same rank after revision of pay scales with effect from 01.01.1996, and, thereafter, to compute their pensionary benefits on such basis with prospective effect from the date of filing of the writ petition and to pay them the difference within three months from date with interest at 10% p.a. 21.5. Lastly, it is also important to note that the Hon'ble Supreme Court was, thus, dealing with the issue of disparity of pension of a Major General/Brigadier in the context of recommendations by the Fifth Pay Commission. No such recommendation, which could be found in the Sixth Pay Commission recommendations, has been brought to the notice of the Tribunal by the learned counsel for the applicants.
22. In fact, as discussed hereinabove, several decisions of the Hon'ble Apex Court have gone to the extent of saying that whenever the Government or an authority frames a Scheme for persons who have superannuated from service, due to many constraints, it is not always possible to extend the same benefits to one and all, irrespective of the date of superannuation. As such any revised scheme in respect of post-retirement benefits, if implemented with a cut off date, cannot be held to be unreasonable and irrational in the light of Article 14 of the Constitution. It is neither arbitrary nor discriminatory. It shall not amount to 'picking out a date from the hat'. Whenever a revision takes place, a cut-off date becomes imperative because the benefit has to be allowed within the financial resources available with the Government.
23. In the case of State of Punjab and others Vs. Amar Nath Goel and others reported in 2005 SCC (L&S) 910, the Hon'ble Supreme Court has categorically laid down that the fixing of the cut-off date for grant of benefit of enhanced gratuity to those who retired or died after 1.4.1995, i.e., the date suggested by the Vth Central Pay Commission, was not arbitrary or irrational. It had a rational basis and, therefore, it had not offended the provisions of Article 14 of the Constitution of India. The cut-off date was fixed on a very valid ground, namely, that of financial constraints.
23.1 In this case the Central Government issued an O.M. dated 14.07.1995 whereby dearness allowance linked to All India Consumer Price Index as on 01.07.1993 was treated as reckonable part of dearness allowance for the purpose of calculating the death-cum-retirement gratuity under the CCS(Pension) Rules, 1972. A number of employees, who had retired prior to 01.04.1995 claimed the DCRG upto the increased limit of Rs. 2.5 lakhs. On being rejection of their claims, they approached the Tribunal and Hon'ble High Court of Punjab & Haryana as well as Hon'ble High Court of Himachal Pradesh. The writ was granted to pensioners who had retired prior to 1.4.1995 holding cut-off date as discriminatory and arbitrary and hence violative of Article 14 of the Constitution by the two Hon'ble High Courts. On appeal to the Hon'ble Supreme Court by the Government, it was held as under:-
It was difficult to accede to the argument that a decision of the Central Government/State Governments to limit the benefits only to employees, who retire or die on or after 1.4.1995, after calculating the financial implications thereon, was either irrational or arbitrary. Financial and economic implications are very relevant and germane for any policy decision touching the administration of the Government, at the Centre or at the State level. In the present case, the cut-off date has been fixed as 1.4.1995 on a very valid ground, namely, that of financial constraints. Consequently, the contention that fixing of the cut-off date was arbitrary, irrational or had no rational basis or that it offends Article 14, is liable to be rejected. 23.2 While allowing the appeals preferred by the Government, the Hon'ble Supreme Court also dealt with D.S. Nakara (supra). Para 29 of the said judgment is reproduced for the sake of convenience:-
29. D.S. Nakara which is the mainstay of the case of the employees, arose under special circumstances, quite different from the present case. It 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. The reason given by the Court was 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. However, it must be noted that even in cases of pension, subsequent judgments of this Court have considerably watered down the rigid view taken in D.S. Nakara as we shall see later in T.N. Electricity Board v. R. Veerasamy (Veerasamy). In any event, this is not a case of continuing benefit like pension; it is a one-time benefit like gratuity. 23.3 In coming to the above said conclusion the Hon'ble Supreme Court in Amar Nath Goel's case (supra), also relied upon its earlier judgment in the case of Union of India Vs. P.N. Menon reported in 1994(4) SCC 68 wherein it has been categorically held that Not only in matters of revising the pensionary benefits, but even in respect of revision of scales of pay, a cut-off date on some rational or reasonable basis, has to be fixed for extending the benefits. This can be illustrated. The Government decides to revise the pay scale of its employees and fixes the 1st day of January of the next year for implementing the same or the 1st day of January of the last year. In either case, a big section of its employees are bound to miss the said revision of the scale of pay, having superannuated before that date. An employee, who has retired on 31st December of the year in question, will miss that pay scale only by a day, which may affect his pensionary benefits throughout his life. No scheme can be held to be foolproof, so as to cover and keep in view all persons who were at one time in active service. As such the concern of the court should only be, while examining any such grievance, to see, as to whether a particular date for exceeding a particular benefit or scheme, has been fixed, on objective and rational considerations.
24. In view of the above discussion of law and fact, all these O.As., being bereft of any merit, are hereby dismissed. However, there shall be no order as to costs.
(JOG SINGH) MEMBER (J) mf/os*