Central Administrative Tribunal - Ernakulam
A.O.B. Nair, Engineer vs Union Of India (Uoi) And Ors. on 24 December, 1999
JUDGMENT G. Ramakrishnan, Member (A)
1. This O.A. has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 aggrieved by the refusal of the respondents to sanction and disburse the entire pensionary benefits to him.
2. The applicant after serving the Indian Navy from 13.11.58 to 25.2.1975 and on being discharged joined the Central Excise and Customs Department on 25.2.1975 as Engineer (Marine). On his confirmation in that post, the applicant opted to continue to draw the military pension and retain the gratuity and continue as fresh hand in the Central Excise and Customs Department as per Rule 19(1) (a) of Central Civil Service (Pension) Rules (CCS (P) Rules for short) for the purpose of pension. After serving 23 years the applicant retired on 30.4.98. By A1 letter dated 28.4.98 DCRG amount of Rs. 1,53,410 was sanctioned in his favour. By A2 order dated 28.4.98 an amount of Rs. 1,98,824 was sanctioned as commutted value of pension along with the reduced value of pension of Rs. 2377A In Al and A2 the entire 23 years of service of the applicant in the Excise and Customs Department was taken into consideration. However, applicant was not paid any amount on his superannuation as per Al and A2. Applicant submitted A3 and A6 representations dated 30.6.98 and 15.7.98 to the 2nd respondent. Applicant received A4 letter dated 31.7.98 along with A5 clarification dated 11.2.98 issued by Desk Officer, Department of Pension and Pensioners' Welfare, New Delhi from the 3rd respondent. Applicant wrote to Hon'ble Minister of Human Resources and Development. He sent A7 letter dated 19.8.98 enclosing therewith A8 letter dated 9.7.82 from Ministry of Finance dated 9.7.82 to respondents. In the meanwhile, A9 and A-10 orders dated 26.8.98 were issued by 3rd respondent in supersession of Al and A2 respectively sanctioning Rs. 1,10,055 towards DCRG, Rs. 1,44,348 as commutted value of pension and reduced pension of Rs. 1725/-. According to the applicant, in A9 and A 10 only 161/2 years of service rendered by the applicant in the Department was counted for pension in clear violation of Rule 19 of the CCS (P) Rules. Hence, he sought the following reliefs:
(a) declare that the entire service rendered by the applicant from 25.2.75 to 30.4.1998 in Customs and Central Excise Department is liable to be counted for fixing the pensionary benefits of the applicant.
(b) direct the respondents to pay pensionary benefits to the applicant as per Annexure Al and A2 taking into consideration the entire service of 23 years put in by the applicant in Customs and Central Excise Department.
(c) direct the respondents to disburse Rs. 97,831/- with interest thereon at the rate of 18% per annum from 26.8.98 till the date of payment and further to pay interest at the rate of 18% per annum on Rs. 3,52,241/- from 1.5.98 to 26.8.98
(d) direct the respondents to pay pension to the applicant at the rate of Rs. 2,377/ per month and to pay arrears till the date with interest at the rate of 18% per annum from the respective dates of default.
(e) direct the respondents to pay all other pensionary benefits with interest thereon at the rate of 18% per annum from the respective dates of default till the date of payment and (f) grant such other reliefs as this Hon'ble Court shall deem just,"
3. According to the applicant as he had opted to continue to draw Military pension and retain gratuity and continue as a fresh hand in the Department as per Rule 19(1)(a) of the CCS(P) Rules, his entire civilian service is to be taken into consideration for computing pensionary benefits irrespective of the number of years of military service. Clarification A5 was not correct and was against provision of Law. Rule 18(3) had no applicability in his case. CCS(P) Rules could not be superseded by letters issued by Desk Officer or any other officer.
4. Reply statements were filed separately by respondents 1 and 2 and respondent No. 3 resisting the claim of the applicant. Respondents No. 1 and 2 in the reply statement submitted that as per direction of Pay and Accounts Officer, after clubbing the military and civil service, the same was restricted to 33 years and accordingly revised DCRG and Pension were worked out for 16 years 8 months and 16 days (33 years minus military service of 16 years 3 months and 16 days).
5. Third respondent in his reply statement submitted that the revised pension and gratuity was worked out on the basis of the clarification issued by the Department of Pensions and Pensioners' Welfare vide R3(C) note dated 11.2.98 and reiterated by R-3(D) letter dated 9.3.99.
6. Heard the learned Counsel for the parties.
7. We have given careful consideration to the submissions made by the learned Counsel for the parties and the pleadings and have perused the documents brought on record. There is no dispute in the fact that the applicant had exercised the option for continuing the draw the military pension under Rule 19(1)(a) of the CCS (Pension) Rules, 1972. The matter for adjudication before us is how his pension for the civil service is to be worked out.
8. Respondents contend that there is a limitation on the civil pension in case of a re-employed military pensioner opting to retain military pension under Rule 19(1)(a) of CCS (Pension) Rules. According to them Rule 18(3) of CCS (Pension) Rules, 1972 read with DP&AR O.M. No. 38/5/81 PE dated 5.3.82 provides that the pension for subsequent civil service will be subject to the limitation as provided in Rule 18(3) of CCS (Pension) Rules. In this context they referred to their R3 reference to the Department of Pensions and Pensioners Welfare and the Desk Officer's noting dated 11.2.98. In addition, they have quoted R3(d) letter dated 19.3.99 issued by the Department of Pension & Pensioners' Welfare as an authority for their action. The letter dated 19.3.99 had been issued with the approval of the Additional Secretary (Pension) and the note dated 11.2.98 is that of a Desk Officer. The CCS (Pension) Rules have been framed with the approval of the President and are statutory in nature. When such is the case, the note issued by the Desk Officer or a letter issued with the approval of the Additional Secretary (Pensions) cannot be an authority for modifying the provisions of any of the rules included in the said Rules.
9. Further, the letter dated 5.3.82 produced as Annexure R3(B) has no applicability in the case of the applicant. The said letter extends the provision of option under Rule 18 and 19 to re-employed civil and military pensioners respectively who do not get confirmed in their spell of civil employment and remain temporary. The applicant in the present O.A. was confirmed in the spell of civil employment.
10. The question that comes up now is haw to work out the civil pension of the applicant; specifically what is the period of service to be taken into account for working out the civil pension. According to Rule 19(1)(a) his former military service would not count as qualifying service for civil pension. He will be entitled to earn civil pension under the CCS (Pension) Rules for the period of actual civil service rendered by him. We are coming to this conclusion in view of the absence of any specific provision in Rule 19 as available in Rule 18. (There is no rule in Rule 19 corresponding to Rule 18 (3) in Rule 18).
Therefore, the applicant is entitled for counting the period of his civil service from 25.2.75 to 30.4.98, without any reference to the military service rendered by him, as qualifying service for civil pension.
11. Even if it is accepted for a moment that the provisions of Rule 18(3) are applicable to the applicant, the said rule does not put a limit on the combined qualifying military and civil services to 33 years for the purpose of civil pension. Rule 18(3) states as follows :
"18. Counting of pre-retirement civil service in the case of re-employed Government servants.
(3) In the case of a Government servant who opts for Clause (a) of Sub-rule (1) the pension or gratuity admissible for his subsequent service is subject to the limitation, that service gratuity, or the capital value of the pension and (retirement gratuity) if any, shall not be greater than the difference between the value of the pension and (retirement gratuity) if any, that would be admissible at the time of the Government servant's final retirement if the two periods of service were combined and the value of retirement benefits already granted to him for the previous service."
12. A careful reading of the above rule will indicate that the limitation is on the value of the retirement benefits and not on the number of years of qualifying service. On that score also, the action of the respondents in issuing A9 and A10 restricting the combined qualifying service to 33 years and taking the qualifying service for civil pension as the difference between 33 years and the length of military service cannot be sustained. In any case, we have already held that the applicant is entitled for civil pension on the basis of his civilian qualifying service from 25.2.75 to 30.4.98.
13. In the result, the O.A. succeeds and is allowed directing the respondents to re-workout the pension, DCRG and Commutation of pension taking into account the qualifying service of the applicant from 25.2.75 to 30.4.98. The arrears on account of the difference between what is due as now re-worked out and what is already paid, on account of pension and DCRG shall be paid within a period of three months with interest @ 18% from the dates they became due till the date of payment. Difference of commutted value of pension as due also should be paid to him within this period.
14. The O.A. is allowed as above with no order as to costs.