Central Administrative Tribunal - Ernakulam
M.Sakthivel vs Union Of India Represented By The on 9 February, 2016
o;? CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH, ERNAKULAM
ORIGINAL APPLICATION NO.180/00050/2014
TUESDAY, DATED THIS THE 9TH DAY OF FEBRUARY, 2016
HON'BLE SHRI U.SARATHCHANDRAN . . . MEMBER(J)
HON'BLE SHRI RUDHRA GANGADHARAN . . . MEMBER(A)
1. M.Sakthivel,
Retired Postmaster,
Head Post Office Alappuzha,
Residing at 'Dwaraka',
Thathampally, Alappuzha District-688013.
2. K.J.Joseph,
Retired Head Postman,
Head Post Office, Alappuzha,
Residing at Kalluveettil House,
Power House Ward, Alappuzha North-688 007.
3. Annamma Thomas,
Retired Postmaster, Cherthala Head Post Office,
Residing at Kalpallil,
Thathampally, Alappuzha b� 688 013.
4. A Abdul Karm,
Retired Deputy Postmaster,
Alappuzha Head Post Office,
Residing at Thahiralayam,
Alissery, Alappuzha b� 688001.
5. P.R.Radhamani,
Retired Sub Postmaster,
Collectorate Post office,
Kottayam, residing at 'Sarovaram',
Ithithanam, Kottayam Dirstrict b� 686535.
6. G.Rajamma,
Retired Postal Assistant,
Thycaud Head post Office, Thiruvananthapuram,
Residing at T.C.19/1458, 'Ragam',
Thamalam, Poojappura,
Thiruvananthapuram b� 695 012.
7. Jacob Mammen,
Retired Senior Superintendent of Post Offices,
Ernakulam Division, residing at 'Parepurackal',
Residing at 'Gopavadam',
Tholicode, Kollam District b� 691333.
8. N.D. Vasanthakumari, Retd. Postmaster, Punalur Head
Post Office,
R/a: 'Gopavadam', Tholicode, Kollam, Dist. 691333.
9. P.J.Jose,
Retired Postmaster,
Kattappana Head Post Office, Idukki District,
Residing at Parapurackal House,
Kanjar, Kudayathoor, Idukki District-685590. . . Applicants
(By Advocate Shri B.Unnikrishna Kaimal)
Vs.
1. Union of India represented by the
Secretary of Government,
Ministry of Communications,
Department of Posts,
New Delhi - 110 001.
2. The Chief Postmaster General,
Kerala Circle,
Thiruvananthapuram - 695 033.
3. The Director of Postal Services,
Office of the Postmaster General,
Central Region, Kochi - 682020.
4. The Superintendent of Post Offices,
Alappuzha - 688 012.
5. The Senior Superintendent of Post Offices,
Kottayam - 686 001.
6. The Superintendent of Post Offices,
Thiruvananthapuram South Division,
Thiruvananthapuram - 695 036.
7. The Superintendent of Post Offices,
Pathanamthitta 689 645.
8. The Superintendent of Post Offices,
Idukki Division, Thodupuzha 685584. . . . Respondents
(By Additional Central Government Standing Counsel Shri
C.P.Ravi Kumar)
ORDER
HON'BLE SHRI RUDHRA GANGADHARAN . . .MEMBER(A) The nine applicants retired from the Department of Posts, Kerala Circle, on the dates tabulated below:
Sl.No. Applicant Date of
Retirement
1 Applicant 6 30.6.2007
2 Applicant 1,3 30.6.2009
and 5
3 Applicant 4,7 30.6.2010
and 9
4 Applicant 2 and 30.6.2012
8
The applicants submit that since they retired on 30 th June they were not paid the actual increment which became due on 1st July of the year in which each of them retired; nor was the annual increment taken into consideration while calculating their retirement benefits. However based on an order of this Tribunal many other postal circles and other Central Government departments do reckon the annual increment while calculating the pensions of similarly situated persons. They have not given any examples of such cases.
2. The applicants made a series of representations to the concerned authorities (Annexure A1 to A4, A17, A20, A24, A26 and A28). In every case the subject matter was '. . .Request for treating the date of retirement as 01.7.2007 afternoon and to grant pensionary benefits allowing increment and DA admissible as on 1.7.2007 reg (sic).' These requests were turned down by the respondents (Annexure A5 to A8, A18, A21 and A25). Appeals filed by the first six applicants were also turned down. The representations of the 8th and 9th applicant are yet to be answered.
3. The sixth applicant wanted the date of her retirement be treated as 1.7.2007 since her date of birth was 1.7.1947. The respondents replied that: 'As per the provisions under FR 56, a Govt servant whose date of birth is the first of a month shall retire from service on the afternoon of the last day of the preceding month on attaining the age of sixty years. As your date of birth being 01.07.1947 (sic), you were permitted to retire from service on the afternoon of 30.6.2007'. So, from 01.07.2007 you are a pensioner (Annexure A23).
4. Rule 10 of the CCS (Revised Pay) Rules, 2008 (CCS RPR 2008) has uniformly fixed the date of drawal of the annual increment to all employees on 1st July of every year. The applicants submit that the increment paid on 1st July is for the one year's service preceding the said date. The fact that an employee retired on 30th June should not disqualify him or her from getting the benefit of the increment; nevertheless only those in service on 1st July are allowed to draw the said increment. This is unjust and the respondents must therefore refix the pensions of the applicants and pay them arrears from the time they retired from service. All the applicants have relied on the judgment of the Hon'ble Supreme Court in S Banerji Vs. Union of India1; the judgment of the Hon'ble Andhra Pradesh High Court in R.Malakondiah & P.Chandrakanth George (W.P.Nos.1219 & 1409 of 1998); the decision of a Full Bench of the Bombay Bench of this Tribunal (camp Nagpur) in OA No.459/97 and 460/97; and the order of the Hyderabad Bench of this Tribunal in OA No.757/2002.
5. Taking shelter under Rule 10 of the CCS RPR 2008 the respondents submit that since the applicants were not in service on 1st July of the year in which they retired, they are not entitled to the annual increment of that particular year. The retirement benefits of the applicants were worked out and paid on the basis of the last pay drawn on 30th June in terms of Rule 50(5) of 1AIR 1990 SC 285 the CCS (Pension) Rules, 1972. The rules do not allow the respondents to refix the pension of an employee by taking into account a date after that employee superannuated from service; hence the respondents rejected the representations of the applicants.
6. We have carefully perused the pleadings and heard learned Counsel from both sides. Government issued the CCS RPR 2008 in pursuance of the decision to broadly accept the recommendations of the VIth Central Pay Commission (CPC). Paragraph 11.5 in the Summary of the Main Recommendations of the CPC clearly states that the date of annual increment will be the 1st of July in all cases (emphasis added). The very same recommendation is embodied in Rule 10 of the CCS RPR 2008. The date has therefore been chosen after due consideration by an expert body constituted by the Government of India; it has not just been picked out of a hat. In UOI Vs TR Das 2 the Hon'ble Supreme Court held that the conclusions arrived at by a Pay Commission are not susceptible to judicial review. FR 56 states every Government servant shall retire from service on the afternoon of the last day of month in which he attains the age of sixty years. FR 56 adds that a Government servant whose date of birth is the first of a month shall retire from service on the afternoon of the last day of the preceding month on 2 (2003) 11 SCC 658 attaining the age of sixty years. The applicants have challenged neither Rule 10 of the CCS RPR 2008 nor FR 56; they have challenged only the series of communications rejecting their representations and appeals.
7. The judgment of the Hon'ble Supreme Court in S.Bannerji's case (supra) is not relevant to the present OA. The Honb�ble Apex Court held that the petitioner in Bannerjib�s case was entitled to the increment since he had taken voluntary retirement with effect from 1.1.1986, not 31.12.1985. We are also aware that the pay rules then prevalent were in pursuance of the recommendations of 4th Central Pay Commission. Much water has since flowed under the bridge and the present case involves the recommendations of the VIth CPC.
8. The applicant has cited the decision of a Full Bench of this Tribunal in OA No.459/1997 and 460/1997, both decided on 15.10.1999. The operative portion of the said order is extracted below:
A Government servant completing the age of superannuation on 31.03.1995 and relinquishing charge of his office in the afternoon of that day is deemed to have effectively retired from service with effect from 01.04.1995.
9. It is useful in this context to refer to the decision of a Full Bench of the Hon'ble High Court of Andhra Pradesh in Principal Accountant General and b�& v.
C.Subba Rao3 dated 27.1.2005. A major issue considered in the said 3 2005 (2) ALT 25 judgment was:
9(I) Whether a Government servant who retires on the last working day of the preceding month and whose annual increment falls due on the first of the succeeding month is entitled for sanction of annual increment for the purpose of pension and gratuity?
Xxxxx xxxxxxx x xxxxxx
This query was analysed in the following manner.
17. . . . . . .In the first situation, a Government servant though he attains the age of 60 years on any day of the month, he is deemed to have not attained such age till the afternoon of the last day of that month. . . . . . . if a Government servant is retired on a day before the actual date of birth on any day of the month and the increment of such government servant falls on the first of the succeeding month, can be claim annual grade increment? The answer must be an emphatic 'no'.
Because, by the date on which the increment falls due, such Government servant ceased to be a Government servant. It is therefore logical and reasonable to conclude that merely because for the purpose of F.R. 56(a), a person is continued till the last date of the month in which he attains the age of superannuation, such an employee cannot claim increment which falls due on the first day of the succeeding month after retirement.
18. In second situation, a Government servant, who is covered by the proviso to F.R.56, that is to say, whose date of birth is first of a month, such employee has to retire on the last day of the preceding month. In Courts' considered opinion, no distinction can be made in both the cases, as the Government servants retired on the last day of the month and with effect from first day of succeeding month ceases to discharge Government duties and no pay is payable. If an increment is denied to a Government servant falling under F.R.56(a) though he retires on the last day of month, the same principle will have to be applied to a Government servant falling under first proviso to F.R.56. Such interpretation would subserve the principle of equality and has to be preferred to any other possible and plausible method of interpretation. It is well settled that a provision of law has to be interpreted in a non- discriminatory manner in tune with principle of equality before law and equal protection of laws enshrined in Article 14 of the Constitution of India [See in K.P.Vargese v. I.T.Officer, Ernakulam, (Para 17)]. Yet another situation is where the date of birth of a Government servant falls on the last day of the month. In such a case, he has to necessarily retire on the same day on which his date of birth falls and even if his increment falls on the first day of the succeeding month, he would not be entitled for any annual increment.
xxx xxx xxx
42. . . . . . . In our opinion, judgment in Banerjee case, is not an authority for the proposition that an employee who retires on the last working day of the month is deemed to have retired on the first day of the succeeding month. . . . . . . . .
xxxxxx xxxxxxxx xxxx
44. The Full Bench, in our considered opinion, came to the correct conclusion in laying down that Government servant retiring on last day of the preceding month is deemed to have become pensioner on the next day and therefore such pensioners also entitled for the benefit of enhanced gratuity. We fail to appreciate the contention of the learned Counsel for respondents that this decision has bearing on the question before us. This case does not in any manner assist the respondents. Indeed, it supports the view canvassed by the petitioners before us that a person retiring on the last day of the preceding month ceases to be borne on the establishment with effect from beginning of first day of the succeeding month and he would not be entitled for payment of any emoluments as soon as first day of the succeeding month commences, i.e., after 12.00 'O' clock in the night.
xxx xxxxx
xxx
49. Applying the same principle, so as to get increment falling due on the first of the succeeding month, an employee must satisfy not only the condition of becoming entitled, but also the other conditions, namely, he should continue to be on duty as a Government servant paid from Consolidated Fund of India, and such increment should have been taken into consideration for the purpose of payment of his salary for the month during which such person retires. When an increment is given in recognition of past one year service, the benefit of such increment will not accrue in the past or in present time but the benefit would accrue only from a point of time in future. When an employee retires on the last working day of the month he ceases to be such Government servant and thus he would not get any benefit of such Government servant and thus he would not get any benefit of such increment. Hence, no increment need be granted to such retired employee.
xxx xxxx xxxx
54. . . . . . . We accordingly overrule the judgement in Malakondaiah case (supra).
10. In UOI vs R. Sundara Rajan the Hon'ble Madras High Court (WP No. 28433 OF 2005 and WPMP.No.30978 of 2005) overruled an order of the Madras Bench of this Tribunal in OA No.87/2004 on 28 January, 2009 on a similar issue. Among other things the judgment noted that '. . . the analysis made by the Full Bench of the Andhra Pradesh High Court is squarely applicable and is consistent with the latest decision of the Supreme Court in Achhaibar Maurya's case.' The said judgment also quotes the following passage from an unreported decision of the High Court of Karnataka in W.P.No.18186 of 2003 (UOI and 3 Others Vs YNR Rao), disposed of on 8.12.2003:
5. . . . Therefore, a government servant retiring on the afternoon of 31-3-1995 retires on 31-3-1995 and not from 1-4-
1995. We hold that the decision of the Full Bench (Mumbai) of the CAT that a government servant retiring on the afternoon of 31st March is to be treated as retiring with effect from the first day of April, that is same as retiring on the forenoon of first of April, is not good law.
11. We are guided by the detailed and authoritative findings of the Honb�ble High Courts of Andhra Pradesh and of Madras. We also find that the order of the Hyderabad Bench of this Tribunal in OA No.757/2002 concerns payment of interest on GPF; it is not relevant to the present matter. The various judgments and orders cited by the applicant therefore do not buttress his case.
12. The OA therefore fails and is dismissed. There is no order as to costs.
(RUDHRA GANGADHARAN) (U.SARATHCHANDRAN)
MEMBER(A) MEMBER(J)
sd.