Central Administrative Tribunal - Ernakulam
P. Sarojini vs The Director General on 8 March, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 1105 of 2011
Friday, this the 08th day of March, 2013
CORAM:
HON'BLE Mr. JUSTICE P.R. RAMAN, JUDICIAL MEMBER
HON'BLE Mr. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER
P. Sarojini,
W/o. C.V. Purushothaman,
Aged 65 years,
Retired Superintendent,
Regional Office, ESI Corporation,
Thrissur : 680 020,
Residing at "Chithra",
Chonkulangara House,
Ayyanthole, Thrissur : 680 003 ... Applicant.
(By Advocate Mr. R. Sreeraj)
v e r s u s
1. The Director General,
Headquarters Office,
Employees' State Insurance Corporation,
Panchdeep Bhavan, CIG Road,
New Delhi : 110 002
2. The Regional Director,
Regional Office (Kerala),
Employees' State Insurance Corporation,
Panchdeep Bhavan,
N.S. Round, Thrissur : 680 020
3. Union of India represented by its
Secretary to the Government of India,
Ministry of Personnel, Public Grievances and
Pensions, Department of Personnel & Training,
New Delhi : 110 001 ... Respondents.
(By Advocate Mr. T.V. Ajayakumar for R1-2 and
Mr. Millu Dandapani, ACGSC for R-3 )
This application having been heard on 22.02.2013, the Tribunal on
08.03.12 delivered the following:
O R D E R
By HON'BLE Mr. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER The applicant retired from the service of the Employees' State Insurance Corporation (ESIC) on 31.12.2006 as Superintendent in the cadre of Insurance Inspector/ Manager Grade-II/Superintendent. The scale of pay of the cadre was Rs. 5500-9000 upto 20.04.2004. Subsequently,the pay scale was revised to Rs.6500-10500 notionally with effect from 21.04.2004 and with monetary benefits from 01.10.2007 vide Annexure A-1 letter dated 24.10.2007. Vide Annexure A-4 order dated 23.04.2008, the pay of the applicant was revised to Rs. 8100/- in the pay scale of Rs. 6500-10500. Pursuant to O.M dated 13.11.2009 (Annexure A-11) of Ministry of Finance, Department of Expenditure, vide order dated 03.03.2009 (Annexure A-10) ESIC decided to grant the Grade Pay of Rs. 4600/- in pay band PB-2 to the post of Insurance Inspector/Manager Grade-II/Superintendent notionally from 01.01.2006 and with monetary benefits from 01.10.2007. But vide Annexure A-6 dated 01.07.2008, the pay fixation order of the applicant was cancelled on the ground that no revision of pension is to be done in respect of Insurance Inspector/Manager Grade-II/Superintendent who retired from the service of the ESIC prior to 01.10.2007 on the basis of O.M dated 05.09.2007 of the Ministry of personnel. The request of the applicant for revision of pension was rejected on the ground that revision of pension arises only when there is change in the drawal of last pay/average emoluments drawn during last 10 months of her service and that grant of Grade Pay of Rs. 4600/- is applicable only to those Insurance Inspector/Manager Grade-II/Superintendent who were in the pre-revised scales of pay of Rs. 6500-10500 as on 01.01.2006. The applicant again represented to the 1st respondent showing how the denial of the pay scale of Rs. 6500-10500 as well as the Grade Pay of Rs. 4600/- resulted in an anomaly of her junior getting more pension than her. Finding no response, the applicant has filed this OA for the following reliefs:
(i)To declare that the denial of the scale of pay of Rs. 6500-200-
10500 to the applicant with effect from 01.10.2004 which resulted in denial of the Grade Pay of Rs.4600/- attached to the cadre of Insurance Inspector/ Manager Grade-II/Superintendent as well as monthly pension and other pensionary benefits on the basis of the emoluments arrived at on the basis of the pre-revised scale of Rs. 6500-200-10500 and Grade Pay of Rs. 4600/- is highly illegal, arbitrary, unjust and irrational and that the same violates Art. 14 and 16 of the Constitution of India;
(ii)To quash Annexure A-5, Annexure A-6 and Annexure A-14;
(iii)To direct the respondents to restore to the applicant the benefits of Annexure A-4 pay fixation order with consequential benefits like grade pay of Rs. 4600/- as well as monthly pension and other pensionary benefits on the basis of emoluments arrived at on the basis of the pre-revised scale of Rs. 6500-200-10500 and Grade Pay of Rs. 4600/- and also to grant her the arrears with interest;
(iv)Alternatively, direct the respondents to step up the pension of the applicant to that of junior Smt. Meenakshy and give her all the consequential benefits including the arrears with interest;
(v)Such other relief as may be prayed for and this Hon'ble Tribunal may deem fit to grant;
(vi)Grant the costs of this Original Application.
2. The applicant contended that the denial of the scale of pay of Rs. 6500- 10500 with effect from 21.04.2004, which resulted in denial of Grade Pay of Rs. 4600/- as well as monthly pension and other pensionary benefits on the basis of the emoluments arrived at based on the pre-revised scale of Rs. 6500- 10500 and Grade Pay of Rs. 4600/-, is highly illegal and arbitrary. Annexure A-6 order cancelling the Annexure A-4 pay fixation order is not in accordance with the principles of natural justice as she was not given an opportunity of being heard. As the revised scale of pay of Rs. 6500-10500 is deemed to have been implemented from 21.04.2004, the applicant should have been deemed to have drawn the pay in the revised scale of Rs. 6500-10500 and Grade Pay of Rs. 4600/- on the date of her retirement and the same should have been taken into account for fixing her pension and other pensionary benefits. When denial of pay scale of Rs. 6500-10500 has resulted in the anomaly of the applicant drawing lesser pension than her junior, the average emoluments drawn or the last pay drawn is the emoluments/pay to be arrived at notionally, on fixation in the pre revised scale of pay of Rs. 6500-10500 with effect from 01.10.2004, the date of option given by the applicant. The judgement of the Hon'ble Supreme Court in the case of K.S. Krishnaswamy and Others vs.Union of India and Another, 2006 KHC 1772, is not applicable to the case of the applicant as she was in service on the date of effect of the pay revision, i.e. 21.04.2004, on notional basis. She retired from service 02 years and 08 months thereafter. To keep her out of the purview of the pay revision and to deny her the benefit of revised pension is inexplicable.
3. The respondents in their reply statement submitted that the revision of pension arises only when there is a change in the drawal of last pay/average emoluments drawn during last 10 months of his/her service as per Rule 49 of the CCS (Pension) Rules. As it is clearly stated in Annexure A-5 letter that no revision of pension is to be done in respect of Insurance Inspector/Manager Grade-II/Superintendent who retired from the service of the ESIC prior to 01.10.2007, any pre-decisional hearing was not required before the issuance of Annexure A-6 order, which was a consequence of Annexure A-5 clarification. The applicant was not in service on 01.10.2007. As she was not in service on that date,she is not entitled for the revised pay scale and revised pension Notional increase in pay prior to 01.10.2007 cannot be considered for calculation of the average emoluments in respect of Insurance Inspector/ Manager Grade-II/ Superintendent. The junior of the applicant continued in service upto 31.03.2008, i.e. more than one year after the retirement of the applicant on 31.12.2006. Therefore, the fixation of pay of her junior is not all relevant and applicable in the present case. Rule 34 of the CCS (Pension) Rules states that average emoluments shall be determined with reference to the emoluments drawn by a Government servant during the last 10 months of his/her service. The contention raised by the applicant on the basis of deeming provision is untenable. In the judgement dated 23.11.2006 in K.S. Krishnaswamy's case (supra), Hon'ble Supreme Court has held that it is well settled principle of law that the policy decision of the Government can be reviewed/altered/modified by executive instructions. It was also held that clarificatory executive instructions are complimentary to each other and that the ambit of a decision cannot be enlarged to cover all claims 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 pension be different. In view of the clarification by the Government of India in Annexure R-1(d) O.M, the contentions raised by the applicant are legally unsustainable. Mere fact that the applicant was in service on the notional date of implementation of the revised pay scale / revised Grade Pay, does not entitle her for revision of pay and pension. In Annexure R-1(d) O.M issued in pursuance of the judgement of the Hon'ble Supreme Court in K.S. Krishnaswamy's case, the Government of India declared that revision of pension could not be done on the basis of average emoluments notionally drawn during the last 10months under Rule 34 of the CCS (Pension) Rules. The applicant who had retired from the service of the ESIC on 31.12.2006 was not placed in the pay scale of Rs. 6500-10500 and Grade Pay of Rs. 4600/-. Her representation at Annexure A-15 was disposed of vide Annexure R-1(a) letter.
4. We have heard Mr. R. Sreeraj, learned counsel for the applicant and Mr. T.V. Ajayakumar, learned counsel appearing for the respondents No. 1 and 2 and perused the records.
5. Annexure A-4 dated 23.04.2008 granting the applicant the pay scale of Rs. 6500-10500 was cancelled vide Annexure A-6 order dated 01.07.2008 which was based on Annexure A-5 order dated 07.05.2008. The Anneuxre A-5 order was based O.M dated 05.09.2007, which amended the O.M. dated 26.04.2004 which clarified certain points as under:
3. Whether the benefit of Under notional fixation, the pay is higher pay in the actually fixed in higher pay scale upgraded pay scale for from the date of such notional calculating pensionary fixation, increments in the higher benefits, will be pay scales are also allowed but no applicable to pensioners arrears are payable. Accordingly, retired during 1.1.96 to the pension of all the pensioners as 18.02.03. had retired during 1.1.96 to 18.02.03 would have to be fixed as per the upgraded pay scales notionally extended from 1.1.96.
However, no arrears shall be paid and the pension with reference to the higher revised pay scale shall actually be paid only with effect from 19.02.03.
6. Whether revision of Revision of pension is allowed as pension in these cases a special case in relaxation of could be done on the Rules.
basis of average
emoluments notionally
drawn during the last 10
months of service under
Rule 34 of CCS
(Pension) Rules.
7.(i) Whether the provisions In respect of the Government contained in OM dt servants retiring during the period 17.12.98 issued by the 1.1.96 to 18.02.03 revision of Department of Pension pension would be fixed notionally are applicable, with on the basis of the average reference to the emoluments with reference to the upgraded pay scales revised pay scales and would be with effect from 1.1.96, not less than 50% of the minimum for the purpose of of the pay scale. However, no pension fixation on arrears would be payable on this notional basis of average account for the period 1.1.96 to emoluments and the 18.02.03.
actual benefit will be allowed from 19.2.03.
7.(ii) Whether the benefit of Revision of pension in respect of fixation of pension with pre-96 retirees will be on the basis reference to upgraded of corresponding revised pay scales could be extended scales as on 1.1.96. In other to pre-96 retirees also. words, the benefit of upgraded pay scales will not be admissible in the case pre-96 retirees.
The above clarifications were negated in pursuance of the judgement of Hon'ble Supreme Court dated 23.11.2006 in K.S. Krishnaswamy and Others vs.Union of India and Another, 2006 KHC 1772, in C.A. No. 3174/2006 and connected C.As. The cancellation of Annexure A-4 order which entailed non revision of pension in the revised pay structure with Grade Pay of Rs. 4600/- was thus ultimately traced to the above said judgement of the Hon'ble Supreme Court. The relevant part of the said judgement is extracted as under :
"16. The grievances raised in the two sets of appeals are the same. The basic question that arises for consideration is as to whether the Executive Instructions in the form of O.M. dated 11.5.2001 over-ride the O.M. dated 17.12.1998 and are null and void. In other words, as to whether the O.M. dated 11.5.2001 over-rides the earlier O.M. dated 17.12.1998 clarifying the Policy Resolution of the Government dated 30.9.1997.
17. The main thrust of the submissions of learned counsel for the appellants is that the O.M. dated 11.5.2001 over-rides the original O.M. dated 17.12.1998 and creates two classes of pensioners. We are unable to accept this contention. As noticed above, the recommendations of the 5th Pay Commission were accepted to the extent of Policy Resolution dated 30.9.1997. The aforesaid Policy Resolution was further clarified by issuing instructions in O.M. dated 17.12.1998, which were clarified by another Executive Instructions in O.M. dated 11.5.2001. It is well settled principle of law that recommendations of the Pay Commission are subject to the acceptance/ rejection with modifications of the appropriate Government. It is also well settled principle of law that a policy decision of the Government can be reviewed/ altered/ modified by Executive Instructions. It is in these circumstances that a policy decision cannot be challenged on the ground of estoppel. In the present case, the recommendations of the 5th Pay Commission were accepted by a Policy Resolution dated 30.9.1997 that the ceiling on the amount of pension will be 50% of the highest pay in the Government. The pension of all pre 1.1.96 retires including pre-86 retires shall be consolidated as on 1.1.1996, but the consolidated pension shall not be brought on to the level of 50% of the minimum of the revised pay of the post held by the pensioner at the time of retirement. The subsequent O.M. dated 17.12.1998 clarified the Policy Resolution dated 30.9.1997 by Executive Instructions in O.M. dated 17.12.1998 and further clarified in the form of O.M. dated 11.5.2001 clarifying the contents of Policy Resolution of the Government dated 30.9.1997. They are both complementary to each other. Both clarify the Government Policy Resolution dated 30.9.1997. The appellants are not aggrieved by the Executive Instructions in O.M. 17.12.1998. In our view, therefore, the contention of the appellant that the O.M. dated 11.5.2001 over-rides the original O.M. dated 17.12.1998, thereby creates two classes of pensioners is absolutely ill- founded and untenable.
18. 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.
19. Counsel for the appellants heavily relied on the Constitution Bench decision of this Court in D.S. Nakara v.Union of India [1982] INSC 103; (1983) 1 SCC 305 where this Court at Page 345 SCC observed that "liberalised pension scheme becomes operative to all pensioners governed by 1972 Rules irrespective of the date of retirement."
20. 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.
21. 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.
22. In Indian Ex-Services League v. Union of India [1991] INSC 18; (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."
(emphasis supplied)
6. According to the respondents, in pursuance of the above judgement of the Hon'ble Supreme Court, the Government of India declared that revision of pension could not be done on the basis of average emoluments notionally drawn.
7. What the Hon'ble Supreme Court held was that certain executive instructions clarifying the policy resolution dated 30.09.1997 are complimentary to each other and that a policy decision can be altered by clarificatory executive instructions and that a policy decision cannot be challenged on the ground of estoppel. . The ambit of the decision of the Hon'ble Supreme Court in Nakara's case (1983) 1 SCC 305, cannot be enlarged to cover all claims of a retiree, irrespective of the date of retirement and irrespective of the emoluments. We are unable to see anything in the judgement that compelled the Government of India to negate the clarification dated 26.04.2004.
8. The affected employees who were either appellants or respondents in their respective Civil Applications before the Hon'ble Supreme Court had retired prior to 01.01.1996, the date of implementation of the recommendations of the Vth Central Pay Commission. The applicant in this O.A retired on 31.12.2006, one year after the implementation of the recommendations of the VIth Central Pay Commission with effect from 01.01.2006 and 02 years and 08 months, after the revision of her pay scale to Rs. 6500-10500 on notional basis. Thus, she is not similarly placed as the contesting employees in K.S. Krishnaswamy's case. Therefore, we are in agreement with the contention of the applicant that the judgement in Krishnaswamy's case is not applicable to her.
9. The Hon'ble Supreme Court found that two O.Ms dated 17,12.1998 and 11.05.2001 clarified the contents of the policy resolution dated 30.09.1997 and that they are complimentary to each other. The Hon'ble Supreme Court did not hold that any executive instruction can render a policy decision ineffective or that all clarificatory instructions are complimentary to each other. It is the ambit of the decision of the Nakara's case only that cannot be enlarged and not any other decision. The respondents have not stated either in the O.M. dated 05.09.2007 or in the reply statement that which part of the judgement of the Hon'ble Supreme Court in Krishnaswamy's case necessitated negation of the clarification in para 3, 6, 7(i) and 7(ii) of the O.M. dated 26.04.2004.
10. In the result, we hold that the Annexure A-5 and A-6 orders and O.M. dated 05.09.2007 to the extent they affected the applicant adversely are null and void and Annexure A-4 pay fixation order of the applicant in the pay scale of Rs. 6500-10500 remain intact with effect from 01.10.2004 as opted for, by the applicant.
11. The above pay fixation of the applicant is notional from 01.10.2004 to 30.09.2007 in terms of Annexure A-1 order dated 24.10.2007. The applicant retired on 31.12.2006 with notional pay fixation. The question arises whether notional pay can be reckoned for the purpose of calculation of pension and retirement benefits. According to the respondents notional increase in pay prior to 01.10.2007 cannot be considered for calculation of the average emoluments in respect of the applicant. They relied on the Rules 34 and 49 of the CCS (Pension) Rules. In U. Raghavendra Acharya and Others vs. State of Karnataka and Others, 2006 KHC 1200, the Hon'ble Supreme Court observed as follows :
"The stand of the State of Karnataka that the pensionary benefits had been conferred on the appellants w.e.f. 1.4.1998 on the premise that the benefit of the revision of scales of pay to its own employees had been conferred from 1.1.1998, in our opinion, is wholly misconceived. Firstly, because the employees of the State of Karnataka and the appellants, in the matter of grant of benefit of revised scales of pay, do not stand on the same footing as revised scales of pay had been made applicable to their cases from a different date. Secondly, the appellants had been given the benefit of the revised scales of pay w.e.f. 1.1.1996. It is now well settled that a notification can be issued by the State accepting the recommendations of the Pay Revision Committee with retrospective effect as it was beneficent to the employees. Once such a retrospective effect is given to the recommendations of the Pay Revision Committee, the concerned employees despite their reaching the age of superannuation in between the said dates and/or the date of issuance of the notification would be deemed to be getting the said scales of pay as on 1.1.1996. By reason of such notification as the appellants had been derived of a vested right, they could not have been deprived therefrom and that too by reason of executive instructions."
(emphasis supplied) Following the principles laid down as above, once the applicant is given the pay scale of Rs. 6500-10500 with retrospective effect from 01.10.2004, though on notional basis, she derives a vested right of getting the said pay scale as on 01.10.2004. The notionality of the pay scale merely deprived the applicant of arrears of pay till 01.10.2007. Having retired on 31.12.2006, her pension will be notional in the revised pay scale till 01.10.2007 depriving her of arrears of pension only till that date. From 01.10.2007 onwards, she is entitled to have the pension reckoned on the basis of the pay scale of Rs. 6500-10500, its corresponding Pay Band with Grade Pay of Rs.4600/- in the revised pay structure. This stand is further buttressed by the judgement of Hon'ble High Court of Kerala in Syndicate Bank vs. Celine Thomas, 2005 KHC 1841. The relevant part of the said order is extracted as under :
"13. The mini classification, which is complained of, is a serious one. Even admittedly by the Banks concerned, though they have entered into Memorandum of Understanding only on June 23, 1995, revised gratuity based on the revised pay had been given to those who retired prior to June 23, 1995, but on or later than November 1, 1994. At the same time revision of pay scales takes effect from November 1, 1992. In such circumstances, denial of the very same benefits to those who retired between November 1, 1992 to November 1, 1994 amounts to mini classification offending the mandate of Article 14 of the Constitution of India. No nexus is pointed out for bringing any classification between those who retired between April 1, 1992 and October 31, 1994 and those who retired between November 1, 1994 and June 23, 1995. Both these artificial groups of retirees had retired from service prior to the date of arriving at the Memorandum of Understanding, but after the date of retrospectivity to the MoU. They therefore form themselves into one class as all of them retired later than the giving effect to the pay revision by the Memorandum of Understanding. When persons forming same class are treated differently it violates Article 14 of the Constitution denying them equal protection of law and equality before law. Denial of gratuity to the writ petitioners is therefore discriminatory. Consequently, on that reason alone, we have to sustain the view taken by the learned single Judge.
14. Consequently, W.A. No. 1584 of 2002 stands dismissed and O.P. No. 23514 of 1998 stands allowed with consequential direction to pay the respective employees the amount of gratuity payable based on the revised pay as entitled to them. The payment shall be effected within four months from the date of receipt of a copy of this judgment."
(emphasis supplied)
12. The policy decision of the respondents was to grant retrospectively the pay scale of Rs.6500-10500 from 21.04.2004 with no arrears upto 01.10.2007 to all those who were in service in the cadre of Insurance Inspector/ Manager Grade-II/Superintendent on 21.04.2004. The applicant opted to have the scale from 01.10.2004. It makes no sense to grant the pay scale retrospectively with effect from 21.04.2004, if the pay scale was to be implemented with effect from 01.10.2007 only. Therefore, no executive instruction can take way the vested right of the applicant to get the benefit of policy decision to grant retrospectively the pay scale with effect from 21.04.2004 as she was in service on that day. The employees in the cadre of Insurance Inspector/ Manager Grade-II/Superintendent form themselves into a one class as on 21.04.2004, having the pay scale of Rs. 6500-10500. Such employees who retired before 01.10.2007 and who retired thereafter also form one class for the purpose of pension. Any attempt to classify them into separate classes for the purpose of pensionary benefits is violative of Article 14 of the Constitution of India as held by Hon'ble Supreme Court in Nakara's case as well as by the Hon'ble High Court of Kerala in the case of Syndicate Bank vs. Celine Thomas (supra). Therefore, the actual pay drawn by the applicant should be the pay to which he was entitled to, for the purpose of pensionary benefits to be computed as per Rules 34 and 49 of the CCS (Pension) Rules. In Annexure A-2 order dated 15.11.2007, which gives detailed instructions regarding fixation of pay on implementing the policy decision at Annexure A-1, it is stated as follows :
"It may kindly be noted that the pay has been fixed only to arrive the pay as on 01.10.2007 to make the official entitled to the monitory benefit from 01.10.2007. No arrears for the period earlier to 01.10.2007. in respect of pensioner, the pension is to be revised based on the above revision of pay and the enhanced pension will be applicable only from 01.10.2007. The proposal for revision of pension is to be sent to Hqrs. Office."
(emphasis supplied) Annexure A-10 order dated 03.03.2009 further clarified as under:
"EMPLOYEES' STATE INSURANCE CORPORATION PANCHDEEP BHAWAN, C.I.G. MARG, NEW DELHI -2 No.A-27/17/1/6th CPC/2008-E-III Dated : 03-03-2009 MEMORANDUM Sub: Fixation of pay under CCS (RP) Rules, 2008 in respect of I.I/Mgr.Gr.II/Supdt - regarding.
This branch has received letters from various regions seeking clarification on the fixation/revision of pay under CCS (RP) Rules, 2008, in respect of I.I/Mgr.Gr.II/Supdt. and this issue was examined in consultation with Finance & Accounts and the modalities for fixation of pay in respect of I.I/Mgr.Gr.II/Supdt. are as under :
1. The pay of Insurance Inspector should be fixed in the revised pay scales on 01.01.2006 based on the pay the individual was actually drawing as on 01.01.2006 in the pre-revised actual pay scales of Rs. 5500-175-9000 and the individual should be given increment as per the revised CCS (RP) Rules, 2008 for the year 2006 and 2007.
2. The arrears for the period from 01.01.2006 to 30.09.2007 should be calculated based on the fixation done as per (1) above.
3. Simultaneously, the pay should be notionally fixed in the revised pay scales on 01.01.2006 based on the pay, the individual was notionally drawing in the pre-revised pay scales of Rs. 6500-
10500 as on 01.01.2006 and the increment as per the revised CCS (RP) Rules, 2008 may be allowed. However, this notional pay will become actual pay of the official from 01.10.2007.
4. The arrears for the period from 01.10.2007 onwards should be calculated based on the fixation done as per (3) above.
Yours faithfully, Sd/-
(S.K. SHAH) JOINT DIRECTOR - III "
(emphasis supplied) These are clarificatory executive instructions which are complimentary to each other and together they clarified the contents of the policy decision to grant the Insurance Inspector/ Manager Grade-II/Superintendent the pay scale of Rs. 6500-10500 with effect from 21.04.2004 and the revised pay structure with effect from 01.01.2006. It means that they are granted notional pay from 21.04.2004 to 30.09.2007. If there is notional pay, it follows that there shall be notional pension too. The non payment of arrears of pay/pension upto 01.10.2007 which alone is meant by the notionality of the revised pay scale to the applicant, does not come in the way of treating the pay in the revised pay scale/structure as the actual pay drawn by the applicant for the purpose of Rule 34 and 49 of the CCS (Pension) Rules.
13. Government of India decision No.5(A) to Rules 34 of the CCS (Pension) Rules reads as under:
"(5A) Pay scales for the staff belonging to the Organized Accounts Department with effect from 1-1-1996 - Fixation of Pension.- The pay scales of the various posts in the Organized Accounts Cadres in various basis with effect from 1-1-1996 with actual payments being made from 19.02.2003. Clarifications were issued vide this Department's O.M. of even number, dated 26.04.2004, 08.02.2005 and 05.09.2007 on matters of fixation of pension, etc., of the employees of Organized Accounts cadres consequent on the above revision of the pay scales with effect from 01.01.1996.
2. In accordance with Rules 33 and 34 of CCS (Pension) Rules, 1972, the pension of a retiring Government servant is calculated on the basis of the pay which a Government servant was receiving immediately before his retirement and the pay not actually drawn is not taken into account for this purpose. As a result of application of these rules, the employees of Organized Accounts Cadres who retired during the period from 1.1.1996 to 18.02.2003 could not get the benefit of the upgraded pay scales in the matter of fixation of their pension.
3. The matter has been reviewed in consultation with the Ministry of Finance and the following revised clarifications are issued :
(i)The pension of all the pensioners who had retired from Organized Accounts Cadre during 1.1.1996 to 18.02.2003 would be fixed as per the upgraded scale notionally extended with effect from 1.1.1996.
However, no arrears shall be paid for the period from 1.1.1996 to 18.02.2003 and the pension with reference to the higher revised pay scale shall actually be paid only with effect from 19.02.2003.
(ii)The average emoluments notionally drawn by a pensioner consequent on the above revision of pay scales of Organized Accounts Cadres will also be taken into account for the purpose of computation of pension subject, of course, to the condition that no arrears shall be paid for the period from 01.01.1996 to 18.02.2003 and the pension with reference to their average emoluments shall actually be paid only with effect from 19.02.2003.
(iii)In accordance with the instructions contained in Department of Pension and P.W. O.M. No. 45/10/98-P&PW(A, dated 17.12.1998 and O.M. No. 45/87/97-P&PW(A), dated 11.05.2001, the benefit of revised upgraded scale of pay will not be extended to the pensioners who retired before 1.1.1996, as clarified in this Department's O.M of even number, dated 5.9.2007.
4. The above benefits of notional upgradation of pay with effect from 1.1.1996 has been extended to the pensioners who retired from the Organized Accounts Cadres as a special case considering the hardships caused to them under the circumstances mentioned in Para 1 and 2 above. The instructions contained in this OM will, therefore, not be quoted as a precedent for extension of similar benefits in cases where the pay of a Government servant on the date of retirement is drawn on notional basis.
5. The instructions/clarifications issued vide this Department's OMs of even number, dated 26.04.2004, 08.02.2005 and 5.9.2007 will stand modified accordingly. The other instructions/ clarifications, which have not specifically been modified in this OM, will remain unchanged. [G.I., Dept. of P.&P.W., O.M.No.38/86/03-PW(A), dated 5th November, 2008] "
(emphasis supplied) As the O.Ms dated 26.04.2004, 08.02.2005 and 05.09.2007 have been modified as above, the average emoluments notionally drawn on the revised pay scale/structure, are to be taken into account for computation of pension of the applicant subject to the condition that no arrears shall be paid for the period upto 01.10.2007.
14. In the light of the above discussion, the O.A is allowed as under. The Annexures A-5, A-6 to the extent they relate to the applicant and Annexure A-14 are quashed. The respondents are directed to restore to the applicant the benefits of Annexure A-4 pay fixation order with consequential benefits like Grade pay of Rs. 4600/- and to revise her pension on the basis of the emoluments arrived at based on the pre-revised scale of Rs. 6500-10500 and Grade Pay of Rs. 4600/- and also to grant her the arrears arising therefrom within a period of 02 months from the date of receipt of a copy of this order.
No costs.
(Dated, the 08th March, 2013)
(K. GEORGE JOSEPH) (JUSTICE P.R. RAMAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
cvr.