Central Administrative Tribunal - Ernakulam
P C Sebastian vs Director General Of Posts on 10 January, 2023
1 O.A No. 180/00742/2018
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 180/00742/2018
Tuesday, this the 10th day of January, 2023.
CORAM:
HON'BLE Mr. JUSTICE K. HARIPAL, JUDICIAL MEMBER
P. C. Sebastian. S/o Late Cherian
Aged 68 years Assistant Superintendent of
Post Offices (Retd.), SIS Bhavan
Peringatt Road, Palarivattom P.O.
Cochin - 682 025. - Applicant
[By Advocate: Mr. C.S. Gopalakrishnan Nair]
Versus
1. Director of Accounts (Postal)
Kerala Circle, Trivandrum - 695 001.
2. Chief Postmaster General
Kerala Circle, Trivandrum - 695 033.
3. Union of India
Represented by its Secretary
Department of Pension & Pensioners' Welfare
Loknayak Bhavan, Khan Market, New Delhi - 110 001.
4. Post Master General
Central Region, Kerala Circle
Cochin - 682 020. - Respondents
[By Advocate : Mrs. O.M. Shalina, SCGSC]
The application having been heard on 23.11.2022, the Tribunal on
10.01.2023 delivered the following:
O R D E R:-
The applicant is a retired Assistant Superintendent of Posts who took voluntary retirement with effect from 05.12.1993. He joined the service on 23.09.1969 and retired after putting in 24 years, 2 months and 2 O.A No. 180/00742/2018 13 days service. According to him, as per the recommendation of the 6 th Central Pay Commission, pension of pre-2006 pensioners was revised with effect from 01.01.2006 as per resolution dated 29.08.2008 of the Government of India, whereby it has been accepted that pension in no case shall be lower than 50% of the minimum of pay in the Pay Band + Grade Pay corresponding to the pre-revised pay scale from which the pensioner had retired. On implementation of the 6 th Pay Commission Report, the scale of pay of the Assistant Superintendent of Posts was revised to Rs. 9300-34800/- with Grade Pay of Rs. 4600/- with effect from 01.01.2006. As per the fitment schedule, the minimum pay of the Assistant Superintendent is Rs. 16,690/- and thus his basic pension should be Rs. 8345/-. But he is granted a lesser pension. In an identical case, this Tribunal held in O.A No. 715/2012 that the pension of pre-2006 pensioners shall not be lower than 50% of the minimum of the pay the Pay Band + Grade Pay drawn corresponding to the pre-revised pay scale from which he had retired. Thus, according to the applicant, irrespective of the qualifying service he is entitled to get 50% of the minimum of pay in the revised Pay Band + Grade Pay as his pension. The Annexure A-5 order was challenged before the Hon'ble High Court and the Hon'ble Supreme Court but in vain. The applicant had given Annexure A-7 representation seeking enhanced pension @ Rs. 8345/- with effect from 01.01.2006. But that has not been responded. In an identical situation, the Delhi High Court has quashed O.M dated 11.02.2009 'to the extent it 3 O.A No. 180/00742/2018 states that the benefit of upgradation of posts subsequent to the retirement would not be admissible to the pre 2006 pensioners'. According to him, the Annexure A-9 estimation of pension is incorrect. He has also produced copy of O.M dated 12.05.2017 which states that pension of persons retired / died prior to 01.01.2016 has to be revised by notionally fixing their pay in the pay matrix recommended by the 7 th CPC in the level corresponding to the pay in the pay scale/pay band and grade pay at which they retired/died. This has to be done by notional fixation under each intervening Pay Commission based on the formula for revision of pay. So, paragraph 4 of Annexure A-10 should be followed, that if pension already revised as per O.M. dated 04.08.2016 is more than the amount revised as per Annexure A-10, the higher of the two formulations should be granted as pension. The Grade Pay applicable to Assistant Superintendent of Posts is Rs. 4600/-. But, the pension of the applicant was fixed taking Grade Pay @ Rs. 4200/-; in fact, Grade Pay of Rs. 4200/- is the Grade Pay of Inspector of Post Offices, which is a lower post. From Annexure A-12, it is very clear that the Grade Pay of Assistant Superintendent of Post Offices is Rs. 4600/- in the Pay Band of Rs. 9300- 34800/- with effect from 01.01.2006. Referring to Annexure A-13 he pointed out that the Grade Pay of the Assistant Superintendent of Post Offices has further been enhanced to Rs. 4800/- in level 8 with effect from 01.01.2016. Accordingly, he gave Annexure A-14 representation which also has not been responded. He has also challenged Annexure A- 4 O.A No. 180/00742/2018 15 revised Pension Payment Order where his pension has been revised taking Grade Pay @ Rs. 4200/- only which is patently illegal and arbitrary. So he seeks to quash the Annexure A-15 and seeks a declaration that he is entitled to get revision of pension in the Pay Band and Grade Pay applicable to Assistant Superintendent of Post Offices with effect from 01.01.2006 and 01.01.2016 and to issue revised PPO.
2. On behalf of the respondents, the 1 st respondent filed reply statement challenging the very maintainability of the O.A. According to him, the applicant had retired on 05.12.1993 after putting in 24 years, 2 months and 13 days service in the scale of pay of Rs. 1640-60-2600-75- 2900. Thus, he was granted a monthly pension of Rs. 845/-. As per the 6th CPC report, the pre-revised scales of Rs. 5500-9000/- and 6500- 10500/- were merged together. Consequent to the merger, the Postal Inspectors were granted the scale of Rs. 6500-10500/- and the Assistant Superintendent of Post Offices is placed in the next higher level of Rs. 7450-11500/-. On the Inspectors were placed in the revised scale of Rs. 9300-34800 with Grade Pay of Rs. 4200/- in PB- 2, the Assistant Superintendent of Post Offices were placed in the revised scale of pay with Grade Pay of Rs. 4600/- to maintain relativity in the cadre. Thus, the scale of Assistant Superintendent of Post Offices was upgraded and revised to Rs. 9300-34800 with Grade Pay of Rs. 4600/-. In Annexure R-2 O.M. dated 11.02.2009 it is specifically made clear that 'the benefit of upgradation of posts subsequent to their retirement would not be 5 O.A No. 180/00742/2018 admissible to the pre-2006 pensioners'.
3. In Annexure R-3 O.M dated 10.07.2013, it is clarified that the revision is to be made keeping in view the revised pay scale/Grade Pay corresponding to the pay scale from which the pensioner had retired and not the revised pay scale of the upgraded post. Moreover, in Annexure R- 4 order of the Chandigarh Bench of this Tribunal, it has been made clear that there is no provision in any of the relevant O.Ms for notional fixation of pay in the revised pay scale for those who had retired prior to 01.01.1996/01.01.2006. In Annexure R-5, the Department of Pension and Pensioners' Welfare, Ministry of Personnel, Public Grievances and Pensions issued a concordance table of the pre-1996, pre-2006 and post 2006 pay scales/pay bands indicating the pension/family pension. Annexure R-5 is applicable to the applicant. Annexure R-6 which was issued in compliance with the order of the Tribunal has been upheld by the Hon'ble High Court and Hon'ble Supreme Court, those pensioners retired from the scale of Rs. 6500-10500/- are entitled to the Grade Pay of Rs. 4200/- only. According to the respondents, revision of pension can be made only keeping in view the revised pay scale/grade pay corresponding to the pay scale from which the pensioner had retired and not the revised pay scale of the upgraded post. Thus, revision of pension was done correctly and the applicant is not entitled to get the benefit of subsequent upgradation of the post of Assistant Superintendent of Post Offices. So the respondents seek to dismiss the application. 6 O.A No. 180/00742/2018
4. The applicant filed rejoinder along with Annexure A-16 O.M. dated 04.01.2019 contending that the respondents are bound to 'consider revision of pension/family pension with effect from 01.01.2006 under para 4.2 of the O.M dated 01.09.2008 to grant Grade Pay of Rs. 4600/- corresponding to the Grade Pay in the scale of pre-2006 pensioners who retired/died in the 5th CPC scale of Rs. 6500-10500/- or equivalent pay scale in the earlier Pay Commissioners periods'. Moreover, the applicant has reiterated the decision of the Delhi High Court in Ramphal v. Union of India which set aside the Annexure R-2 O.M dated 11.02.2009.
5. Referring to a decision of the Hon'ble High Court in OP (CAT) No. 169/2015 it is stated that what is important for revision of pension is the post in question and not to the corresponding scale of pay.
6. To this, the respondents filed additional reply statement. Referring to Annexure R-1, they pointed out that when the pension of the applicant was estimated through two formulations, the figures arrived at were Rs. 7158/- and Rs. 7215/-. Therefore, following the concordance table, the higher amount was granted as pension. The claim that he is entitled to get pension @ Rs. 8345/- with effect from 01.01.2006 is incorrect. Annexure A-16 is not applicable since it relates to persons who drew scale of pay Rs.6500-10500/- whereas the appropriate scale of the applicant was Rs. 5500-175-9000/- in 5th CPC and Rs. 9300-34800/- + Grade Pay of Rs. 4200/- in 6th CPC. Hence, he is not entitled to get Grade 7 O.A No. 180/00742/2018 Pay of Rs. 4600/-. Moreover, the judgment of the Delhi High Court is a judgment in rem which is not applicable to the applicant. In OP(CAT) No. 60/2019, it was held that revision of pension is dependent on revision of the pay scale as it stood at the time of their retirement and the Court had interfered with the order of the Tribunal which had held otherwise.
7. I heard the learned counsel on both sides in detail.
8. The facts of the case are not in dispute. The applicant was an Assistant Superintendent of Post Offices, who retired on 05.12.1993 taking voluntary retirement. He had put in 24 years 2 months and 13 days service and at the time of retirement he was drawing at a scale of Rs.1640-60-2600-75-2900. Accordingly, by Annexure-A1 order he was granted pension of Rs. 845/-, which was periodically revised during the succeeding pay revisions. It is also not in dispute that the corresponding scale during the next pay commission was Rs. 3500-175-9000 and then during the 6th pay commission, it was Rs. 9300-34800/- with Grade Pay of Rs. 4200/-. The corresponding level with effect from 01.01.2016 is level 6 in the scale of Rs. 35400-112400. The case of the applicant is that the scale of the Assistant Superintendent stands upgraded subsequently, so that he is entitled to get the benefit of the said hike and therefore, he is totally unsatisfied with the fixation of pension.
9. When heard, the learned counsel for the applicant submitted that he limits his prayer for revision from 01.01.2016 only and that other prayers for revision of pension with effect from 01.01.2006 are not 8 O.A No. 180/00742/2018 pressed because of the change in the pattern. Referring to Annexure-A10 Office Memorandum dated 12.05.2017 he said that 50% pattern is to be extended to him. Referring to paragraph 4 of Annexure A-10 he said that notional pay has to be fixed as per the recommendations of the 7 th CPC as if he is in service and then 50% of the pay in accordance with the scale granted to the Assistant Superintendent of Posts is to be allowed to him. So he said that Annexure A-15 revised pension payment order is illegal and arbitrary and liable to be quashed.
10. The crux of the contention of the applicant is that he has been granted pension taking into account the Grade Pay of Rs. 4200/- only which is not correct, that he should be granted revision in accordance with Annexure A-13 since the Grade Pay of Assistant Superintendent has been hiked to Rs. 4800/-. In this connection, the learned counsel also relied on the decision of the Patna High Court in Civil Writ Jurisdiction Case No.10757/2010 besides the judgment of the Hon'ble Supreme Court in Union of India and another v. SPS Vains(Retd) and others [(2008) 9 SCC 125]. According to learned counsel, his pension should be fixed corresponding to the scale at the level of the Assistant Superintendent of Posts in the 7th CPC. The counsel also relied on the decision of this Tribunal in Annexure A-5, which according to him is on similar facts, stands confirmed by the Apex Court. Annexure A-8 judgment of the Delhi High Court in WP(C) No. 3035/2016 also has been relied on.
9 O.A No. 180/00742/2018
11. On the other hand, the learned Senior Central Government Standing Counsel has disputed the claims of the applicant. According to her, the applicant is harping on the post and not on the scale drawn by him at the time of his retirement on 05.12.1993. Annexure A-10 is silent on the 'post' and now the Assistant Superintendent of Posts is drawing a scale at level 8, which is not applicable to the applicant. According to the learned Standing Counsel, the important consideration is the pay drawn at the time of his retirement. She relied on the Official Memorandum dated 06.07.2017 and pointed out that what is applicable is Table 22 and that he is not entitled to get revision taking the scale of pay at level 8, that the applicant has been granted pension eligible to him and the decision of the Patna High Court or SPS Vains, quoted supra, are not applicable to the facts of the case.
12. In reply, the learned counsel for the applicant submitted that he is entitled to get the benefit of upgradation of the post of Assistant Superintendent of Posts that the decision of the Supreme Court in K.S.Krishnaswamy and others v. Union of India and another [(2006) 13 SCC 215] is not applicable to the facts of the case. The dictum in Krishnaswamy is applicable only up to 2006. According to him, recommended pay matrix is very important and his pay is liable to be fixed notionally and therefore, enhancement made under Annexures A-4 and A-15 are defective and he is pressing for quashing Annexure A-15.
13. As indicated earlier, the applicant was taking voluntary 10 O.A No. 180/00742/2018 retirement and retired during the 4 th Pay Commission period, and on 06.12.1993 he was granted pension at Rs. 845/- in the scale of Rs.1600- 40-60-2600-75-2900. The corresponding scale during the 5 th Pay Revision was Rs. 5500-175-9000/-. During the 6 th Pay Commission it was Rs. 9300- 34800/- with Grade Pay of Rs. 4200/- and corresponding scale with effect from 01.01.2016 is level 6 with scale of pay of Rs. 34400-112400/-. The crux of the matter is whether the applicant is entitled to get the benefit of upgradation of pay granted to the Assistant Superintendent of Posts as evident from Annexure A-13. Even though the learned counsel submitted that he is limiting his prayer upto 31.12.2015 and is harping on the fact that Assistant Superintendent is being given a hike in the scale. According to learned counsel, what is important is the scale of pay of the post during the pay revision and he is entitled to get revision in pension taking the scale with grade pay of Rs. 4800/-. Learned Senior Central Government Standing Counsel has contested this claim. According to her, the guiding factor is the scale from which one retired and the subsequent upgradation of the post is totally irrelevant.
14. After considering rival contentions and materials and also the authorities governing the field, I have no doubt in mind that the claim of the applicant is not acceptable.
15. The applicant was harping on various set of circumstances and materials. The first and foremost material placed reliance are Annexures A-5 and A-6. Annexure A-5 is an order passed by this Tribunal 11 O.A No. 180/00742/2018 in O.A. Nos. 715/2012 and 1051/2012. Of course the applications were allowed by the Tribunal and the challenges made against it before the Hon'ble High Court and Hon'ble Supreme Court did not succeed. But Annexure A-5 was rendered in totally different context, where the question was whether the department is justified in fixing the pension lower than 50% of the minimum of pay in the pay band and the grade pay corresponding to the pre-revised pay scale from which the pensioner had retired. After examining the materials, this Tribunal had no doubt in upsetting the fixation and held that in no case the pension of the pre- 2006 pensioners shall be lower than 50% of the minimum of the pay in the pay band plus grade pay thereon corresponding to the pre-revised pay scale from which the pensioner had retired. It was stated that those who retired before 01.01.2006 as well were to be given revised pension after enforcing the recommendations of the 6th CPC not less than 50% of the minimum of the pay in the pay band plus grade pay corresponding to the pre-revised pay scale from which the pensioner had retired. It is relevant to say that what is important is the scale of pay from which the pensioner had retired and not the post.
16. Annexure A-8 also cannot come to the help of the applicant. It is an order passed by the Delhi High Court, where implicit reliance has been placed on D.S. Nakara & Others vs Union Of India [AIR 1983 SC 130] and SPS Vain, quoted supra. But the facts remain is that by subsequent decisions the Hon'ble Supreme Court has distinguished the 12 O.A No. 180/00742/2018 decision in D.S.Nakara, and therefore it is not on the safer side to rely on Annexure-A8 to grant any relief to the applicant.
17. Now, the applicant has placed reliance on Annexure A-10 Office Memorandum dated 12.05.2017. In my judgment that also cannot salvage the situation. It is apposite to extract paragraph No.4 of the O.M as follows:
"The aforesaid Committee has submitted its Report and the recommendations made by the Committee have been considered by the Government. Accordingly, it has been decided that the revised pension/family pension w.e.f. 01.01.2016 in respect of all Central civil pensioners/family pensioners, including CAPF's, who retired/died prior to 01.01.2016, may be revised by notionally fixing their pay in the matrix recommended by the 7th CPC in the level corresponding to the pay in the pay scale/pay band and grade pay at which they retired/died. This will be done by notional pay fixation under each Intervening Pay Commission based on the Formula for revision of pay. While fixing pay on notional basis, the pay fixation formulae approved by the Government and other relevant Instructions on the subject in force at the relevant time shall be strictly followed.........(emphasis supplied)"
It is also important to say that in paragraph 7 of Annexure A-10, it has been made amply clear that in the case of those Government servants who retired on or after 01.01.1986 but before 01.01.2006, the actual pay and the pay scale from which they retired or died would be taken into consideration for the purpose of calculation of the notional pay as on 01.01.2016 in accordance with paragraph 4. In other words, what is important is the scale of pay from which one retired and not the scale of pay of the post of the corresponding scale of the post after the pay revision. To put in other words, any 13 O.A No. 180/00742/2018 subsequent hike in the scale of pay of the post has no relevance.
18. Here, as mentioned earlier, the applicant had retired from service on 05.12.1993. Now there is no justification in himself claiming the benefit of subsequent hike in the scale of the post of the Assistant Superintendent effected during the 7th CPC period.
19. This has been made clear in Krishnaswamy, quoted supra. In Krishnaswamy, it is held that 'it is the common knowledge that the corresponding increase in any pay commission is of the scale of pay and not the post.'
20. This aspect has been clearly considered by Krishnaswamy. It is also noticed that Nakara's case, quoted supra has been distinguished by the Hon'ble Supreme Court in State of Punjab v. Boota Singh [(2000) 3 SCC 733], State of Punjab v. J.L.Gupta [(2000) 3 SCC 736], State of West Bengal v. West Bengal Government Pensioners' Assns. [(2000) 2 SCC 179] and State of Punjab v. Amar Nath Goyal [(2005) 6 SCC 754].
21. In Krishnaswamy, the Apex Court has considered the question, in a batch of cases whether any upgradation of scale granted to the incumbents in the subsequent pay revision could be claimed by persons already retired. To illustrate, in Civil Appeal No. 3174/2006, appellants retired as Superintending Engineers from AIR, during 1982-85, at the pay scale of Rs. 1500-2000. In the 4 th pay 14 O.A No. 180/00742/2018 commission, their scale was revised to Rs. 3700-5000 and during 5 th pay commission to Rs. 12000-16500. 20 Senior employees who had rendered 13 years of service were granted special grade in Rs. 2000- 2250, which was revised to Rs. 4500-5700 and 14300-18300 respectively. Appellants also claimed pension taking their scale of Rs. 14300-18300/-. High Court rejected the plea on the consideration that they never enjoyed the special scale of Rs. 2000-2250/-. Hon'ble Supreme Court has upheld the decision of the High Court. Similar other cases have been decided in that case.
22. It is appropriate to extract paragraph 21 of Krishnaswamy's case as follows:
21. Nakara case 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 case are not available in the facts of the present case. In other words, the facts in Nakara case are clearly distinguishable."
In the circumstances, the case of the applicant that he is entitled to get revision of pension in accordance with the hike in the post is totally unacceptable.
15 O.A No. 180/00742/2018
23. At last, the applicant has placed reliance on Annexure A- 16 which was produced along with the rejoinder. In fact, it eludes comprehension as to how Annexure A-16 would be applicable to the facts of the case. The Office Memorandum deals with revision of pension with effect from 01.01.2006 of pre-2006 pensioners, who retired from the 5th CPC scale of Rs. 6500-10500. Apparently, the applicant cannot claim the benefit of such a revision as he was not drawing the scale corresponding to the scale of Rs. 6500-10500/-.
24. It was pointed out that Annexure R-2 O.M stands quashed by the Delhi High Court. But the definite contention of the respondents is that, that judgment is applicable only with respect to the parties in the case, that it is not a judgment in rem. Any how, the decision has not been made available before the Court, so that, it has to be thought that Annexure R-2 still holds good, which makes it clear that pay corresponding to the pre-revised scale from which the pensioner had retired is important. This has been made more clear in Annexure R-3 communication, where it is stated that the Grade Pay corresponding to the pay scale from which the pensioner had retired and not the revised pay scale of the upgraded post is to be taken into consideration. These are in tune with the decision in Krishnaswamy, quoted supra.
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25. Annexure R-5 also indicates that the pension of the applicant was fixed at Rs. 7215/- during the 6 th Pay Commission after rationalising the same. It is also very clear that what is relevant is table 22 and the pension revision has been made following the principles stated above.
26. As mentioned earlier, the judgment of the Patna High Court or SPS Vain are not applicable to the facts of the case. Both the decisions have been rendered basing on Nakara's case, which stands distinguished and I have no doubt that this Tribunal is bound to follow Krishnaswamy. There is no substance in the contention that Krishnaswamy has no application after 2006.
27. In my considered opinion, the contentions raised by the applicant have no basis. The Original Application is bereft of merits. Dismissed. No costs.
(Dated, this the 10th January, 2023) JUSTICE K. HARIPAL JUDICIAL MEMBER ax/ds 17 O.A No. 180/00742/2018 Applicant's Annexures Annexure A1. True copy of the PPO NO.5972/LPS/TVM Annexure A2. True copy of the fitment table annexed to CCS (RP) Rules, 2008 Annexure A3. True copy of the revised PPO issued on 1.3.2013 Annexure A4. True copy of the revised PPO issued on 21.1.2014 Annexure A5. True copy of the order dt. 16.8.2013 in OA. No.715/2012 Annexure A6. True copy of the Order in RP(C)No.2565/2015 in SLP(C)No.6567/2015 dt:28.8.2015 Annexure A7. True copy of the representation dt: 12.2.2017 Annexure A8. True copy of the judgment of the Hon'ble High Court of Delhi in Ramphal Vs. Union of India WP(C)No.3035/2016 dt:3.8.2016 Annexure A9. True copy of the letter No. A&P /13-59/1993 dt:18.7.2017 addressed to the 1" respondent by the Post Master General,Central Region, Cochin 18 O.A No. 180/00742/2018 Annexure A10 True copy of the OM. No.38/17/2016-PG&PW(A) dt:
12.5.2017 issued by the 3rd respondent Annexure A11. True copy of the OM. No.38/17/2016-PG&PW(A) dt:4.8.2016 Annexure A12. True copy of the letter No.AP/4-2/2018 dt:14.5.2018 issued by the 2nd respondent Annexure A13. True copy of the relevant extract of Part C of CCS(RP)Rules 2016 Annexure A14. True copy of the representation dt:20.12.2017 Annexure A16: True copy of the OM No.38/33/12-P&PW(A) dt:4.1.2019 issued by the 3rd respondent Annexure MA 1: True copy of the Revised Pension Payment Order (As per 7cpc Pre-2016) dt.29.8.2018 issued by the 1st respondent Respondents' Annexures Annexure.R-1: True copy of the OM No 38/37/08-P&PW(A) dated 06.04.2016 Annexure.R-2. True copy of DOP&PW OM F No.38/37/08-P&PW (A) dated 11.02.2009 Annexure.R-3. True copy of Postal Directorate letter No. 26-17/13-
PA (PEA) dated 10/07/2013 Annexure.R-4. True copy of the order dated 01.09.2016 in O.A No. 912/2015 Annexure.R-5. True copy of OM No. 38/37/08-P&PA(A) dated 28.01.2013.
Annexure.R-6. True copy of ID Note No. 1(9)/EV/2015 dated 04.12.2015.
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