Central Administrative Tribunal - Delhi
All India S-30 Pensioners Association vs Union Of India on 20 November, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA 937/2010
With
OA 2101/2010
New Delhi this the 20th day of November, 2014
Honble Mr. Justice Syed Rafat Alam, Chairman
Honble Mr. V. Ajay Kumar, Member (J)
Honble Mr. P.K. Basu, Member (A)
OA 937/2010
1. All India S-30 Pensioners Association
Through its President Shri M.P. Budhiraja
B-9/6371, Vasant Kunj,
New Delhi-110070
2. Shri M.P. Budhiraja
S/o Late Shri K.D. Budhiraja
President, Governing Body,
All India S-30 Pensioners Associaton,
Resident of B-9/6371, Vasant Kunj,
New Dehi-110070
3. Shri P.C. Sharma
S/o Late Shri D.R. Sharma
Secretary, Governing Body,
All India S-30 Pensioners Associaton,
Resident of A-301, Prerna Appts. GH8,
Sector-56, Gurgaon-122011
4. Shri J.M. Mehra
S/o Shri R.R. Mehra
Member, All India S-30 Pensioners Associaton,
Resident of B-7/5131, Vasant Kunj,
New Dehi-110070
5. Shri S.M. Puri
S/o Late Shri B.M. Puri
Member, All India S-30 Pensioners Associaton,
Resident of B-9/6275, Vasant Kunj,
New Dehi-110070 Applicants
(Through Shri A.K. Behera, Shri N.N.S. Rana and Shri Bhagman Singh, Advocates)
Versus
1. Union of India
Through Secretary to the Govt. of India
Department of Pensions and Pensioners Welfare,
Ministry of Personnel, Public Grievances and Pensions
Lok Nayak Bhawan,
New Delhi-110003
2. Secretary to the Govt. of India,
Department of Expenditure,
Ministry of Finance, North Block
New Delhi-110001
3. Secretary,
Railway Board,
Rail Bhawan, Raisina Road,
New Delhi-110001
4. Cabinet Secretary,
Government of India
Rashtrapati Bhawan,
New Delhi Respondents
(Through Sh. Rajesh Katyal with Sh. D.S. Mahendru, Advocates)
OA 2101/2010
1. Central Govt. Pensioners Association
of Addl./ Joint Secretary &
Equivalent Officers
D-603, Anandlok CGHS Ltd.
Mayur Vihar Phase I
Delhi 110091
(Through its Secretary Shri S.K. Ray)
2. Shri S.P. Biswas
S/o late Shri Panchanan Biswas
R/o C-607, Anandlok CGHS Ltd.,
Mayur Vihar Phase-I
Delhi 110091
3. Shri G.S. Lobana
S/o late Shri Inder Singh
R/o C-207, Anandlok CGHS Ltd.,
Mayur Vihar Phase-I
Delhi 110091 .Applicants
(Through Shri A.K. Behera, Shri N.N.S. Rana and Shri Bhagman Singh, Advocates)
Versus
1. Union of India
Through Secretary to the Govt. of India
Department of Pensions and Pensioners Welfare,
Ministry of Personnel, Public Grievances and Pensions
Lok Nayak Bhawan, Khan Market
New Delhi-110003
2. Secretary to the Govt. of India,
Department of Expenditure,
Ministry of Finance, North Block
New Delhi-110001 .Respondents
(Through Sh. Rajesh Katyal with Sh. D.S. Mahendru, Advocates)
ORDER
Mr. P.K. Basu, Member (A) By this common order, we propose to dispose of OA 937/2010 and OA 2101/2010 together as the issue involved and reliefs sought for by the applicants are the same.
2. The applicants are all pensioners who had retired while in VI Central Pay Commission (CPC) pay scale of S-30 i.e. Rs.22400-525-24500. They have prayed as follows:
a) direct the respondent authorities to confer the same minimum notional pay scales starting at Rs.75500/- to the applicants since that is the scale which has been given to S-31 in view of the fact that S-30 and S-31 have always had the same minimum pay scale;
b) direct the respondents to consider the revised pay corresponding to the pay at which the concerned pensioner had in fact retired, instead of considering the minimum of the said pay scale, and to give the same pension/ family pension to pre and post 2006 retirees depending on the years of service;
c) remove any discrimination between pre and post 2006 retirees;
d) direct the respondents to ensure that the applicants are given higher pension/ family pension than the pension given to post 2006 retirees who had worked in the lower pay scales viz. S-24 S-29 pay scales.
e) direct the respondents to refix pension/family pension of members of the applicant Association, work out the arrears of pension/ family pension with effect from 01.01.2006 as a result of this refixation and pay the same immediately along with interest, at the rate as decided by the Honble Tribunal from September 2008, i.e. the time when arrears of pension revision were paid as per new Pay scales;
f) direct the respondents to maintain the equation granted under prayer (a) to (e) above in the subsequent Pay Commissions so that the applicants are not required, in their highly advance age, to knock at the door of this Honble Tribunal again and again; and
g) strike down OM dated 18.11.2009.
3. These OAs viz. OA 937/2010 and OA 2101/2010 had been disposed of vide order dated 6.03.2012 by the Full Bench of this Tribunal, dismissing both the OAs. The matter was taken to the Honble High Court in Writ Petition (Civil) No. 4572/2012 and vide order dated 19.08.2013, the Writ was disposed of, setting aside the order of the Tribunal dated 6.03.2012. The Honble High Court restored OAs No. 937/2010 and 2101/2010 for fresh adjudication on merits on the claim of the petitioners for full parity. We quote below paragraphs 3 to 8 of the judgment as this would be relevant as we discuss the case further:
3. As per the petitioners, the originals applications filed by them as also the one filed by the S-29 scale retirees were being heard together till when the S-29 retirees restricted their claim to `modified parity and gave up their claim `full parity. As per the petitioners they maintained a claim for full parity.
4. It is the case of the petitioners that in view of the fact that the retirees of S-29 scale had given up the claim for full parity the Tribunal specifically restricted them to argue their case on the issue of modified parity, but while deciding the said matter, even decided the issue of full parity, and for which assertion by the petitioners they have drawn our attention to the written submissions filed before the Tribunal by the retirees of S-29 scale. Indeed, we find that the counsels therein had restricted their submission on the issue of modified parity. Yet in spite thereof we find that the Tribunal, in its decision dated November 01, 2011, has decided the issue of full parity; and the grievance urged before us is that said decision has been applied even to the petitioners and the results is that the petitioners have been denied an opportunity to argue their case for the reason we find that after the judgment was pronounced in the case of S-29 scale retirees, arguments were not heard.
5. It is the case of the petitioners that there can be no disparity in pension on the basis of the date of retirement. Admittedly pre-2006 S-30 scale retirees are receiving not only less pension vis-a-vis post 2006 retirees but in some cases even less than the post 2006 S-24 scale to S-29 scale retirees.
6. We find that this aspect has not been considered by the Tribunal.
7. We find an issue of parity raised between S-30 scale retirees and S-31 scale retirees and for which we find that in the impugned decision the Tribunal has only noticed the historical comparison between the two scales which shows that the minimum of both pay scales has always been the same, until the instant impugned action based upon the recommendations of the 6th Central Pay Commission. In the writ petitions, the petitioners have specifically referred to the following additional averments made, all of which have not been noted by the Tribunal:-
(a) With regard to the above, it is relevant to note that S-29 Officers can be promoted to both S-30 and S-31 scales directly, after rendering three years service in S-29 scale. Thus, S-30 and S-31 are promotional posts for S-29 officers after rendering the same amount of service.
(b) Further, for S-30 officers to enter S-31 service, nil experience is required in S-30 service.
(c) Appointments to S-30 and S-31 are interchangeable in nature. The factum of their being interchangeable also shows the similar nature of duties etc. being carried out by the employees of S-30 and S-31.
(d) It is submitted that it is for the Government to show what was their reasonable basis or intelligible differentia for giving a higher minimum scale to S-31 employees than that being offered to S-30 employees, when the Government had all along maintained parity at the minimum level in the two scales. The said onus rests on the Respondents which they have completely failed to discharge. A reference to the judgments of the Honble Supreme Court on this aspect shall be made during the course of hearing.
(e) It is further relevant to note that both S-30 and S-31 officers require the same length of time i.e. two years service in the respective scales before being promoted to the next higher scale of S-33. This fact also conclusively establishes the similar nature of the two services.
8. Keeping in view the aforesaid facts, none of which are disputed by learned counsel for the respondents, with consent of learned counsel for the parties we set aside the impugned decision(s) dated March 06, 2012 and simultaneously we restore OA No.937/2010 and OA No.2101/2010 for fresh adjudication on merits by the Tribunal on the claim of the petitioners for full parity. The decision shall be rendered after giving full opportunity of hearing to the petitioners and the decision dated November 01, 2011 passed by the Tribunal in the case of S-29 scale retirees shall not be treated as binding upon it by the Tribunal for the reasons on the subject of full parity the said decision was pronounced notwithstanding said retirees giving up the claim for full parity.
4. The present matter relates to fixation of pension/family pension in so far as persons who have retired on or before 31.12.2005 and who were working in S-30 scale of pay/ corresponding predecessor scales of pay prior to 1.01.1996. The applicants are those who worked in and retired from the All India Services including the Indian Administrative Service, the Indian Police Service, the Indian Forest Service as well as the Central Civil Services. The applicants also represent family pensioners, dependents of the deceased persons who were working in S-30 scale of pay or the corresponding predecessor scales of pay and had retired/ died while in service from the aforementioned services. It is stated by the applicants that the material functions that were being discharged by the members of the applicants association before retirement and the level of responsibility have remained substantially the same in the last several decades during which the III, IV, V and VI Pay Commissions have made their recommendations. It is further stated that the functions that were being discharged by those working in S-31 pay scale have also remained the same over the last several decades. The applicants further stated that at the time of implementation of recommendations of III Pay Commission with effect from 1.01.1973, there was no categorization using the nomenclature S-30 and S-31. The applicants were working in the scale of pay of Rs.3000/- and the next scale was the scale of Rs.3000-100-3500 i.e. the minimum stage of pay of both S-30 and S-31 was the same viz. Rs.3000/-. When the IV Pay Commission recommendations were implemented from 1.01.1986, the minimum of both S-30 and S-31 was again the same i.e. Rs.7300/-. On implementation of recommendations of V Pay Commission from 1.01.1996, the minimum of S-30 (Rs.22400-24500/-) and that of S-31 (Rs.22400-26000) was once again the same i.e. Rs.22400/-.
5. The V Pay Commission also recommended a concept of `modified parity for pre-1.01.1996 pensioners vide which pension of all pensioners prior to the cut off date of 1.01.1996 was brought at par with the minimum pension payable to those retiring from a scale corresponding to the scale in which the pre 1.01.1996 pensioners had retired. Those recommendations were implemented from 1.01.1996. As such pension of all pre-1.01.1996 pensioners of scales corresponding to S-30 and S-31, introduced after V Pay Commission, was decided uniformly at Rs.11200/- being 50% of Rs.22400/-.
6. The VI Pay Commission contemplated five Pay Bands viz. 1S and PB-1 to PB-4 introduced to encompass all central government employees from lowest to the highest barring scales of pay S-33 and S-34 applicable to Secretaries and the Cabinet Secretary and equivalent posts. Pay scales S-28 to S-32 were included in Pay Band 4 for which a running scale of Rs.39200-67000/- was recommended. In effect, the minimum of the scale worked out to Rs.49400/-. However, there was a marginal difference in the grade pay corresponding to the respective scales of pay existing earlier. The grade pay recommended for S-30 was Rs.11000/- while the grade pay recommended for S-31 was Rs.13000/-. The respondent authorities, however, modified the recommendations of the VI CPC with respect of Pay Band 4 and issued orders whereby the scale of Rs.39200-67000 was reduced to Rs.37400-67000 and the grade pay corresponding to S-30 was fixed at Rs.12000/-. On the other hand, for S-31, the scale was increased to Rs.75500-80000/- without any grade pay. As a result of these changes made by the government, the pension of pre-2006 pensioners of S-30 scale of pay was sought to be fixed with reference to minimum pay of Rs.49400/- while that of pre-2006 pensioners of S-31 scale of pay with reference to minimum pay of Rs.75500/-.
7. Vide order dated 1.09.2008, the government, following the recommendations of the VI Pay Commission, ordered revision of pension of all the pensioners retired after 1.01.2006 as 50% of the pay drawn by them on the date of retirement or 50% of the average pay drawn during immediately previous ten months, whichever is favourable to the pensioners whereas the pensioners who retired on or before 31.12.2005, their revised pension is determined merely as a factor of the existing pension drawn by them, subject to the same not being less than 50% of the minimum of the pay in the pay band plus grade pay corresponding to the pre-revised pay scale. Para 4.1 and 4.2 of the said OM dated 1.09.2008 are extracted below for ready reference:
4.1 The pension/ family pension existing pre-2006 pensioners/ family pensioners will be consolidated with effect from 1.01.2006 by adding together:-
i. The existing pension/ family pension ii. Dearness Pension, where applicable iii. Dearness Relief up to AICPI (IW) average index 536 (Base year 1982=100) i.e. @ 24% of basic pension/ Basic Family Pension plus dearness pension as applicable vide this Departments O.M.No.42/2/2006-P&PW(G) dated 5.04.2006.
iv. Fitment weightage @ 40% of the existing pension/ family pension.
Where the existing pension in (i) above includes the effect of merger or 50% of dearness relief w.e.f. 1.04.2004, the existing pension for the purpose of fitment weightage will be re-calculated after excluding the merged dearness relief of 50% from the pension.
The amount so arrived at will be regarded as consolidated pension/ family pension with effect from 1.01.2006.
4.2 The fixation of pension will be subject to the provision that the revised pension, in no case, shall be lower than fifty percent of the minimum of the pay in the Pay Band plus the grade pay corresponding to the pre-revised pay scale from which the pensioner had retired. In the case of HAG + and above scales, this will be fifty percent of the minimum of the revised pay scale.
8. It has been stated that pension of all the applicants has accordingly been fixed at Rs.33500/-, being the minimum of the notional scale of pay Rs.67000-79000/- applicable to the applicants. Likewise family pension of the spouses of the late pensioners of S-30 scale has been fixed at Rs.20100/- being 60% of the half of Rs.67000/-, the minimum of the scale. The applicants pointed out that resultantly, even though a pensioner, while working in the scale of Rs.22400-24500/- may have worked his way up to Rs.24500/- (maximum of predecessors scale) yet, while determining pension, only Rs.22400/- was being taken into account for working out pension. It is argued that the result of the same is that the service rendered whereby the pensioner had got increase in pay from Rs.22400/- to Rs.24500/- by earning various increments (which increments were earned with corresponding service having been rendered) was being undone. Therefore, the learned counsel for the applicants emphasized that considering the settled law that payment of pension and other benefits is not a bounty and service which has been rendered should not be undone, instead of considering the minimum of the pay scale, consideration should be the corresponding revised pay, corresponding to the stage at which the pensioner was in fact working at the time of retirement.
9. Though the government had improved the S-30 pay scale from Rs.37400-67000+12000 Grade Pay to Rs.67000-79000/- as an HAG scale under order dated 16.07.1990, the applicants contend that this order still suffers from the same arbitrariness and lack of rationale and is in no way near the scale Rs.75500-80000 as S-30 and S-31 always had the same minimum pay. As a result of this difference in minimum pension of all pre-1.01.2006 S-30 pensioners, their pension has been fixed at Rs.33500/- vide OM dated 20.08.2009 whereas those for S-31 pensioners, it has been fixed at Rs.37750/-, thus creating substantial disparity between the two. These two notifications dated 16.07.1990 and 20.08.2009 are being challenged herein to the extent they do not redress the grievance of the applicants. It is stated that S-30 and S-31officers who retired on 31.12.1995 or earlier were getting exactly the same basic pension viz. Rs.11200/- for a long period from 1.01.1996 to 31.12.2005. In case of retirees of the period 1.01.1996 to 31.12.2005, the gap was only marginal. The S-30 pensioners of latter period got a basic pension between Rs.11200/- and Rs.12250/- while corresponding pension of S-31 retirees was between Rs.11200/- and Rs.13000/- depending on the increments earned and the last pay at the time of retirement. The applicants have placed the following table to demonstrate the comparison of the two scales S-30 and S-31 over the various Pay Commission periods:
HISTORICAL COMPARISON OF S-30 AND S-31 SCALES Scale S-3 S-31 III CPC 3000 (Fixed) 3000-3500 IV CPC 7300-7600 7300-8000 V CPC 22400-24500 22400-26000 VI CPC Recommendation 39200-67000+11000 Grade Pay 39200-67000+ 13000 Grade Pay VI CPC Implementation 67000-79000 75500-80000 (Figures in Rupees)
10. The grievance is also against OM dated 21.07.2009 vide which the following fitment table has been issued:
FITMENT TABLE Pre-revised Basic Pay Revised Basic Pay 22400 67000 22925 69010 23450 71080 23975 73220 24500 75420
11. The applicants point out that in the chart reproduced above, instead of considering the minimum of the pay i.e. Rs.22400/-, in fact the figure corresponding to the stage at which the concerned pensioner was in fact working at the time of retirement, should be considered for fixation of notional pay and granting pension with reference to the said notional pay. It is further pointed out that the minimum stage of S-30 scale upto 31.12.2005 was higher than or equal to the maximum stage of all the lower grades at the relevant time. As such even under the modified parity introduced on the basis of the accepted recommendations of the Fifth Pay Commission, pension of all the members of the Applicants Association was higher than that of all the pensioners who had retired from lower grades after the cut off date. With the implementation of the Governments decision on the recommendations of the Sixth Pay Commission, this has got disturbed and the pension of pre 1.01.2006 pensioners like the members of the Association became less than the post 2006 pensioners of lower grades.
12. The applicants also raised another anomaly. It is stated that while the pension of pre 2006 retirees of S-30 scale of pay has now been fixed at Rs.33500/-, the post 2006 retirees of lower posts corresponding to pre-revised scales of pay of S-24 to S-29 are eligible for much higher pension. The revised Pay Structure of S-24 to S-29 scales of pay consists of Pay Band of Rs.37400-67000 plus Grade Pay of Rs.8700 for scales S-24 and S-25, Rs.8900 for scales S-26 and S-27 and Rs.10000 for scales S-28 and S-29. The pension of these officers at 50% of the maximum pay will be Rs.37850/-, Rs.37950/- and Rs.38500/- respectively. Posts in S-29 scale of pay are feeder posts for S-30 scale of pay. It is stated that it is settled law that pension entitlement of a lower post cannot be higher than that of a higher post. As such, it is claimed that the pension of a S-30 retiree has to be fixed above Rs.38500/- which is what S-29 can get.
13. It is further argued that the span of PB-4, as laid down by the Sixth Pay Commission in para 2.2.18 is 20 years with annual increments being @ 2.5%. With improvement in the rate of annual increments to 3% ordered by the Government vide notification dated 29.8.2008, this span is reduced to 17 years. As per the extant policy of the Government, all officers are eligible to be promoted to S-24 (PB-4) after 13 years of group A service and would therefore reach the maximum of the PB-4 after they put in 30 years of total group `A service and draw a monthly basic salary of Rs.75700 (67000+8700) even if they do not get any promotion. Similarly, those in higher grades, S-25 to S-29, too would reach the maximum of PB-4 i.e. Rs.67000/- in 30 years of service and a total salary of Rs.75700/- to Rs.77000/-. Thus even scale S-24 officer retiring after the cut off date of 1.1.2006 would get a basic pension of Rs.37850/- against Rs.33500/- being paid to all pre-1.1.2006 pensioners of S-30 scale having rendered at least 33 years of service. Those in higher scales viz. S-25 to S-29 would get further higher pension of Rs.37850/- to Rs.38500/-, as narrated hereinabove.
14. The learned counsel for the applicants argued that fixing the pension of the members of the Association at Rs.33500 is, therefore, capricious, irrational and without application of mind, violative of the law laid down by the Honble Supreme Court of India in Union of India Vs. S.P.S. Vains, [ (2008) 9 SCC 125)] and that the action on the part of the Respondents violates Articles 14 and 16 of the Constitution of India.
15. The applicants argue that in the light of the submissions made hereinabove, the pensioners of all pre 1-1-2006 S-30 grade are eligible for a pension of Rs.39500 if they have put in a total service as Group `A officers of 33 years and above which may be proportionately reduced if their total service was less than 33 years of service.
16. The applicants Association had represented to the Government vide letter dated 27.10.2009 seeking the following reliefs from the Government:
i) the parity that existed with S-31 for a very long time, be maintained.
ii) full parity be maintained with post 01.01.2006 retirees of HAG scale, as per the principle laid down by the Honble Supreme Court and
iii) the pension fixed is not lower than post 01.01.2006 retirees of the post of Joint Secretary and equivalent posts.
17. It is urged that the Government has not sent any reply to the Association but have disposed off some issues referred to in this representation in a letter dealing with various representations vide Office Memorandum dated 18.11.2009. They have rejected all representations stating 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 the retirement were governed by the CCS (Pension) Rules, 1972. The issue raised by the applicants Association regarding parity with the pre 2006 pensioners of S-31 scale of pay has not been replied to by the Government.
18. The learned counsel for the applicants state that while the recent notifications dated 16.7.2009 and 20.8.2009 partly rectify the illegalities, they are being challenged to the extent mentioned herein i.e. the said notifications do not fully redress the legitimate grievances of the applicants therein. Accordingly, the impugned notifications dated 16.7.2009 and 20.8.2009 are being challenged to the limited extent as described earlier i.e. the extent to which they do not fully redress the legitimate grievances of the Applicants; the impugned OM dated 1.9.2008 is being challenged because of para 4.2 which grants only 50% of the pay band plus grade pay, and not complete equality; and further prayer that OM dated 21.7.2009 [regarding re-fixation of pay on replacement of pre-revised S-30 pay scale (Rs.22400-24500) by a new HAG scale (Rs.67000-79000)] should be applied for fixation of pension of pre 2006 retirees as well; and strike down OM dated 18.11.2009.
19. The respondents raised a preliminary objection that in OA 655/2010, a Full Bench of this Tribunal, after taking into consideration the judgments of the Honble Apex Court in D.S. Nakara Vs. Union of India, 1983 SCC (L&S) 145 and Union of India and Anr. Vs. SPS Vains (Retd.) and Ors., JT 2008 (10) SC 399 rejected the relief on admissibility of pension/ family pension to the pre-2006 retired officers at par with post-2006 retired officers and thus the issue stands decided in the light of the reasoning given by the Full Bench. It is also stated that the other prayer of the applicants regarding parity in pay and pension of the retirees of the pre-revised pay scales of S-30 and S-31 categories was also rejected by this Tribunal giving cogent reasons therefor. It is submitted by the respondents that there were number of applicants in four separate OAs before this Tribunal, all decided vide order dated 1.11.2011. In all these OAs, inter alia, the prayer for full parity between pre and post 2006 retirees was made. Therefore, even assuming and not admitting that one set of applicants in one of the OAs namely OA 655/2010, withdrew the plea for full parity, yet in respect of the remaining OAs i.e. OA 3079/2009, OA 306/2010 and OA 507/2010, the petitions were alive and decided vide order dated 1.11.2011. Therefore, it is argued that the order dated 1.11.2011 remains binding on the Tribunal. It is submitted that vide order dated 19.08.2013, the Honble High Court of Delhi set aside the impugned decision dated 6.03.2012 of this Tribunal and simultaneously restored OA No.937/2010 and OA No.2101/2010 on the claim of the applicants for full parity. It is argued that from the above direction of the Honble High Court, it is clear that the Court had remanded the matter back regarding the claim of the applicants for full parity only and not on any other prayer made in the OA No.937/2010 and OA No.2101/2010. Therefore, this Tribunal is not required to re-adjudicate the claim of the applicants for higher pension than the pension given to post 2006 retirees who had worked in the lower pay scales viz. S-24 to S-29 and also the claim for pension based on notional pay scale starting at Rs.75500/-, applicable to S-31.
20. The above preliminary objection was objected to by the learned counsel for the applicants who stated that the Honble High Court in para 7 of its judgment had mentioned that the petitioners have specifically referred to the following additional averments made, all of which have not been noted by the Tribunal:-
(a) With regard to the above, it is relevant to note that S-29 Officers can be promoted to both S-30 and S-31 scales directly, after rendering three years service in S-29 scale. Thus, S-30 and S-31 are promotional posts for S-29 officers after rendering the same amount of service.
(b) Further, for S-30 officers to enter S-31 service, nil experience is required in S-30 service.
(c) Appointments to S-30 and S-31 are interchangeable in nature. The factum of their being interchangeable also shows the similar nature of duties etc. being carried out by the employees of S-30 and S-31.
(d) It is submitted that it is for the Government to show what was their reasonable basis or intelligible differentia for giving a higher minimum scale to S-31 employees than that being offered to S-30 employees, when the Government had all along maintained parity at the minimum level in the two scales. The said onus rests on the Respondents which they have completely failed to discharge. A reference to the judgments of the Honble Supreme Court on this aspect shall be made during the course of hearing.
(e) It is further relevant to note that both S-30 and S-31 officers require the same length of time i.e. two years service in the respective scales before being promoted to the next higher scale of S-33. This fact also conclusively establishes the similar nature of the two services.
21. In para 8, the Honble High Court has noted that keeping in view the aforesaid facts, none of which are disputed by learned counsel for the respondents... It is, therefore, argued that the question of claim for pension based on notional pay scale starting at Rs.75500/- applicable to S-31 was very much an issue and, therefore, that has to be adjudicated by this Tribunal. It was further argued that in para 8 of its judgment, the Honble High Court had given a specific direction that the decision dated 01.11.2011 passed by the Tribunal in the case of S-29 scale retirees shall not be treated as binding upon it by the Tribunal for the reasons on the subject of full parity, the said decision was pronounced notwithstanding said retirees giving up the claim for full parity.
22. We have heard arguments of both sides on the preliminary objection and are inclined to agree with the learned counsel for the applicants that we are to hear the applicants afresh on the issue of full parity without getting influenced by the decision dated 01.11.2011 in the case of S-29 scale. Moreover the issue of differential treatment between S-30 and S-31 scale employees is still open. We, therefore, now take up the issues on merit.
23. The respondents first referred to para 4.1 and para 4.2 of the OM dated 01.09.2008. It is stated that revised pension of pre-2006 retirees who retired at the minimum and at the maximum of the pre-revised S-30 pay scale is worked out in accordance with para 4.1. According to this, the pension works out to Rs.25312/- and Rs.27685/- respectively. However, in terms of para 4.2 of the OM dated 1.09.2008 it cannot be less than minimum pension of Rs.33500/- p.m. Therefore, the revised pension of all pre-2006 S-30 retirees is Rs.33500/- which is much higher than the pension worked out under para 4.1. of OM dated 1.09.2008 and the applicants have no ground to complain.
24. One of the arguments raised by the applicants was that the revised pension of a pre-2006 S-30 retiree has to be necessarily more than a post-2006 retiree in S-24 to S-29 scale and, therefore, the revised pay corresponding to the pay at which the concerned pensioner had retired may be considered, instead of considering the minimum of the said pay scale and pre and post 2006 retirees may be given the same pension/family pension and to remove any discrimination between pre and post 2006 retirees. The respondents reply to this is that the applicants have made this claim based on the judgment of the Honble Supreme Court in Civil Appeal No. 5566/2008 - UOI and Another Vs. SPS Vains and others, which is not applicable to the case of applicants. According to the respondents, the judgment in SPS Vains (supra) was delivered in the backdrop of the peculiar pay structure and the pay of the Armed Forces personnel.
25. It is argued by the respondents that in the Armed Forces, a higher rank officer always drew more pay than a lower rank officer. Also, the pension of the Armed Forces personnel is governed by separate set of rules and instructions which are quite different from those applicable in the case of civilian employees and officers. This special feature of pay and pension in the Armed Forces got disturbed by implementation of the recommendations of the Fifth Central Pay Commission whereby the highest pay of the rank of Brigadier became more than the lowest pay of the rank of Major General. Honble Supreme Court noted this unique feature of the pay and pension structure of the Armed Forces by making the following observations:
5. The case which has been made out in the High Court in the writ petition filed by the respondent herein is that prior to revision of the pay scales from 1.1.1996 the running pay band from Lieutenant to Brigadier, irrespective of promotion, introduced on the basis of the Fourth Pay Commission's recommendations, was Rs.2300-100-3900-EB- 150-4500-EB-5100. The rank pay that was fixed was Rs.200/-, 600/-, 800/-, 1000/- and 1200/- for the ranks of Captain, Major General, Lieutenant Colonel, Colonel and Brigadier, respectively. While a Major General was given a starting salary of Rs.6700/- on the basis of the recommendations of the Fourth Pay Commission, a Brigadier could draw Rs.5,100/- and additional rank pay of Rs.1200/- making a total of Rs.6300/-. Consequently, a Major General always drew higher pay than a Brigadier and the pension payable to officers on the basis of the recommendations of the Fourth Pay Commission was calculated on the basis of salary drawn during the last 10 months prior to retirement. Even on such basis, a Major General always drew more pension and family pension than a Brigadier. It has to be kept in mind that the rank of Brigadier is a feeder post for the promotional rank of Major General.
6. The anomaly arose with the acceptance by the Government of the recommendations of the Fifth Pay Commission which has created a situation whereby Brigadiers began drawing more pay than Major Generals and were, therefore, receiving higher pension and family pension than Major Generals. In view of the recommendations of the Fifth Pay Commission, a Brigadier was given a pay scale of Rs.15350-450-17600 together with rank pay of Rs.2,400/- whereas a Major General was given a pay scale of Rs.18400- 500-22400. In other words, the maximum pay in the pay scale of Brigadier is 17,600/- and the minimum pay in the pay scale of Major General is Rs.18,400/-. Inasmuch as, no rank pay was provided for beyond the rank of Brigadier, the minimum pay provided for a Major General became less than that of a Brigadier who may had reached the maximum point in his scale. Consequently, on retirement, the pension of a Brigadier became more than that of a Major General, since rank pay is also taken into consideration for the purpose of calculating pension and family pension. The pension of a Major General thus became Rs.9,200/-, while that of a Brigadier was Rs.9,550/-.
7. It is this anomaly, when pointed out, which prompted the Government to step up the pension of Major Generals who had retired prior to 1.1.1996, from Rs.9,200/- to Rs.9,550/- giving them the same pension as was given to Brigadiers. Before the High Court it was urged on behalf of the writ petitioners, who at the time of their retirement had held the rank of Major General or Air Vice Marshal, that while the writ petitioners and others similarly placed officers who had retired prior to 1.1.1996 were given the same pension as that of a Brigadier, those officers of similar rank who had retired after 1.1.1996 were given pension according to clause 12(c) of Special Army Instructions 2/S/1998, as a result whereof they were getting much higher pension and family pension than the writ petitioners, despite being of the same rank. It was pointed out that by virtue of the aforesaid Special Instruction the initial pay of an officer promoted to the rank of Major General would be fixed at the stage next above the pay notionally arrived at by increasing his pay, including rank pay of Brigadier, by one increment in the revised scale at the relevant stage. It is this classification within a class which led to the filing of the writ petition before the High Court. Before the High Court it was urged further that such differentiation between officers holding the same rank on the date of retirement was wholly erroneous and violative of the provisions of Article 14 of the Constitution.
In fact, we note that the Union of India accepted before the Apex Court that Major Generals, who hold the higher rank, were entitled to higher pay and pensionary benefits than those enjoyed by Brigadiers. This is evident from the following para in the aforesaid judgement:
18. It was also the respondents' case that though there was no dispute that Major Generals were entitled to higher pensionary benefits than that enjoyed by Brigadiers, the appellant erroneously insisted that the cut-off date had to be fixed in view of the limited financial resources available to cover the additional expenses to be incurred on account of revision of pay scales. It was argued by the respondents that unlike the Army, in the civil side, it is not uncommon to have overlapping scales for various grades in the hierarchy. In fact, it was asserted that such overlapping of pay scales always existed on the civil side as would be clear from the following table:
Grade 4th CPC pay scale 5th CPC pay scale 6th CPC pay band+grade pay/ pay-scale S-15 (Junior Time scale) 2200-4000 8000-13500 15600-39100 + GP 5400 S-19(Under Secretary level) 3000-4500 10000-15200 15600-39100 + GP 6600 S-21(Deputy Secretary level) 3700-5000 12000-16500 15600-39100 + GP 7600 S-24(Director level) 4500-5700 14300-18300 37400-67000 + GP 8700 S-29(SAG/Joint Secty. level) 5900-6700 18400-22400 37400-67000 + GP 10000 S-30(HAG/Addl. Secty level) 7300-7600 22400-24500 67000-79000 S-31( HAG+ level) 7300-8000 22400-26000 75500-80000 S-32(HAG+ level) 7600--8000 24050-26000 75500-80000 S-33 (Secretary level) 8000 26000 80000 (Fixed)
26. Unlike in the Armed Forces, in view of the above pay structure, there is always a possibility of a lower level officer in one Department/organisation in the civil side drawing higher pay than a higher level officer in the same or some other Department/organisation. It is argued that the pension in the civil side is always determined on the basis of the emoluments being drawn at the time of retirement and not on the basis of the rank. In such a situation, it is also possible that an officer drawing higher pay in a lower pay scale also draws higher pension than an officer drawing less pay in a higher pay scale even during the same Pay Commission period. For example, it was pointed out that during the 5th Pay Commission, a Deputy Secretary level officer retiring on a pay of more than Rs. 14300/- in the pay scale of Rs. 12000-16500 would get more pension than a Director level officer retiring on a pay of Rs. 14300/- in the pay scale of Rs. 14300-18300/-. It is emphasized that when there is no provision in the rules for ensuring a higher minimum pay for a higher level officer, the possibility of a retired officer getting less pension than a person retiring from a lower grade cannot be ruled out.
27. It is further argued by the respondents that in the Sixth Pay Commission pay structure, the system of Pay Band and Grade Pay has been introduced. In this system, a higher level officer gets a higher grade pay but he may be getting a lower pay in the Pay Band in comparison to a lower level officer. This may again lead to a higher level officer getting less basic pay and consequently less pension in comparison to a lower level officer.
28. The respondents also point out that there is no provision in the CCS (Pension) Rules 1972 that the pension of a pensioner who retired from a higher pay scale can not be less than the pension of a person who retired from a lower pay scale. The pension of a retiring Government servant is determined on the basis of his emoluments and the qualifying service at the time of his retirement. In case, a Government servant is drawing higher emoluments at the time of retirement, he could be entitled to a higher pension as compared to a Government servant in a higher post but with lower emoluments. There is no rule on the civil side that pension of a person retired from lower grade can not be more than the pension a person retired from a higher grade, either before 2006 or after 2006. The pension in both cases is fixed based on the emoluments/average emoluments (under Rule 33 and 34 of CCS Pension Rules) and are to be revised in accordance with the orders issued on the recommendations of 6th Central Pay Commission.
29. The learned counsel thus argued that in view of the pay structure and the pension fixation rules on the Civil side, which are distinct from those applicable in the Armed Forces, the ratio of the Supreme Court judgement in the SPS Vains is not applicable in the case of civilian pensioners. It is stated that it was in this context that the Office Memorandum No. 38/37/08-P&PW(A) dated 18.11.2009 was issued clarifying that the judgement in SPS Vains case would not apply in the case of pensioners who, before, their retirement, were governed by the CCS(Pension) Rules, 1972.
30. The respondents asserted that in the judgment dated 9.9.2008 in SPS Vains case, Honble Supreme Court relied upon the earlier judgement of the Constitution Bench of the Apex Court in D.S. Nakaras case and in D.S. Nakaras case, the Apex Court observed that the pensioners who retire with the same rank need not be given identical pension, where their average emoluments at the time of their retirement were different in view of the difference in pay or in view of different pay scales being in force. The relevant para from the judgement is reproduced below:
In this context the last submission of the learned Attorney General was that as the pension is always correlated to the date of 206 retirement, the Court cannot change the date of retirement, and impose fresh commutation benefit. We are doing nothing of this kind. The apprehension is wholly unfounded. The date of retirement of each employee remains as it is. The average emoluments have to be worked out keeping in view the emoluments drawn by him before retirement but in accordance with the principles of the liberalised pension scheme. The two features which make the liberalised pension scheme more attractive is the redefining of average emoluments in Rule 34, and introduction of slab system simultaneously raising the ceiling. Within these parameters, the pension will have to be recomputed with effect from the date from which the liberalised pension scheme came into force i.e. March 31, 1979. There is no question of fresh commutation of pension of the pensioners who retired prior to 31st March, 1979 and have already availed of the benefit of commutation. It is not open to them to get that benefit at this late date because commutation has to be availed of within specified time limit from the date of actual retirement. May be some marginal retirees may earn the benefit. That is inevitable. To say that by our approach we are restructuring the liberalised pension scheme, is to ignore the constitutional mandate. Similarly, the court is not conferring benefits by this approach, the court only removes the illegitimate classification and after its removal the law takes its own course.
31. Honble Supreme Court, in its order dated 10.10.2006 in Transfer Case (Civil) No. 72 of 2004 (Col B.J. Akkara vs The Government of India & Ors) summarised the principles relating to pension and made the following observation in regard to the question of difference of pension on account of difference in emoluments at the time of retirement :
20. The principles relating to pension relevant to the issue are well settled. They are :
(a) xxxxxxxxxx
b) But all retirees retiring with a particular rank do not form a single class for all purposes. Where the reckonable emoluments as on the date of retirement (for the purpose of computation of pension) are different in respect of two groups of pensioners, who retired with the same rank, the group getting lesser pension cannot contend that their pension should be identical with or equal to the pension received by the group whose reckonable emolument was higher. In other words, pensioners who retire with the same rank need not be given identical pension, where their average reckonable emoluments at the time of their retirement were different, in view of the difference in pay, or in view of different pay scales being in force.
It is argued by the respondents that the above position was fully appreciated by the Full Bench of this Honble Tribunal in its order dated 1.11.2011 in OA No. 655/2010 and other connected matters. The observations/findings of this Honble Tribunal in this regard are reproduced below:
10. We may now consider the claim made by the applicants based upon the decision of the Apex Court in the case of S.P.S. Vains (supra). As already stated above, the Government of India has issued OM dated 01.09.2008 in respect of pre-2006 pensioners/family pensioners pursuant to acceptance of recommendations made by the VI CPC. Para 2.1 of this OM stipulates that these orders shall apply to all pensioners/family pensioners who were drawing pension/family pension on 1.1.2006 under the Central Civil Services (Pension) Rules, 1972. CCS (Extraordinary Pension) Rules and the corresponding rules applicable to Railway pensioners and pensioners of All India Services, including officers of the Indian Civil Service retired from service on or after 1.1.1973. Para 2.2 stipulates that separate orders will be issued by the Ministry of Defence in regard to Armed Forces pensioners/family pensioners. Thus, reading of this OM clearly stipulates that the OM dated 1.9.2008 has been made applicable to the employees of the Central Government who are granted pension under CCS (Pension) Rules, 1972. Admittedly, the Armed Forces pensioners are not governed by the family pension Rules, 1972 but they are governed by different set of Rules. It may be stated here that in terms of the Pension Rules, 1972 the pension in the case of existing pensioners and future pensioners have to be computed by applying the rule of average emoluments as set out in Rule 34, whereas in the case of the defence pensioners, they are regulated in terms of the Special Army instructions issued in that regard based on the concept of one rank one pension, which is not applicable in respect of the employees serving in the Central Government. That apart the Government of India has also issued instructions dated 18.11.2009 based upon the judgment of the Apex Court in the case of S.P.S. Vains (supra) thereby clarifying that the judgment of the Apex Court in the case of S.P.S. Vains (supra) will not apply in the case of petitioners who retired from the civil departments and who, before their retirement, were governed by the CCS (Pension) Rules, 1972. That apart, in the case of S.P.S. Vains (supra) the Court was dealing with entirely a different issue. The issue involved in the said case was whether there could be a disparity in payment of pension to officer of the same rank, who had retired prior to the introduction of the revised pay scale, with those who retired thereafter. It was further noticed that an anomaly has arisen with the acceptance of the recommendations of the V CPC, which has created a situation whereby Brigadiers began drawing more pay than Major Generals and were, therefore, receiving higher pension and family pension than Major Generals. It was in this context that the judgment was rendered. In order to remove that anomaly Government stepped up pension of Major Generals who had retired prior to 1.1.1996, giving them pension as was given to the Brigadiers. Before the High Court it was urged on behalf of the writ petitioners that while the writ petitioners and the other similarly placed officers who had retired while holding the rank of Major Generals prior to 1.1.1996 were given the same pension as that of Brigadier. However, in the case of Major Generals who retired after 1.1.1996 their pay was initially fixed according to clause 12 (c) of Special Army instructions 2/S/1998 which enabled them to draw higher pension than those retired before 1.1.1996 despite holding the same rank. It was in this context that the Writ Petition was allowed by the High Court, directing 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 1.1.1996 retirees and consequently fix pension and family pension accordingly. Thus, according to us applicants cannot take any assistance from this judgment, which was rendered in the different facts and circumstances of the case and relates to the Army personnel and based on the premise of one rank one pension.
11. Thus, we agree with the reasoning given by the Bombay and Patna Benches of the Tribunal as regards fixation of pension of pre-2006 retirees at par with post-2006 retirees, based on the decisions of the Apex Court in D.S. Nakara and S.P.S. Vains (supra). It is further argued that while dismissing the prayer for complete parity between pre and post 1.1.2006 pensioners, this Honble Tribunal also made the following observations in its Order dated 1.11.2011 in OA No. 655/2010:
4. We may first examine the challenge of the applicants made on the basis of the judgment of the Apex Court in the case of D.S. Nakara (supra). It is not disputed that the Central Government employees on retirement from service are entitled to receive pension under the Central Civil Services (Pension) Rules, 1972. In D.S. Nakaras case (supra) there was no dispute regarding implementation of the liberalized scheme from a cut off date. Rather the Apex Court in the said case in para-47 has categorically held that undoubtedly when an upward revision is introduced a date from which it becomes effective has to be provided. The challenge was made only to that part of the scheme by which the benefit of Liberalized Pension Formula was made applicable to government servants who were in service on March 31, 1979 and retired from service on or after that date. What was the Liberalized Pension Formula has been mentioned in para-37 of the judgment. As can be seen from this para, under the earlier pension scheme the pension was related to average emoluments during 36 months just preceding retirement. On May, 25, 1979 the Government of India, Ministry of Finance issued OM No.F.19(3)EB-79 whereby the formula for commutation of pension was liberalized but it was made applicable to government servants who were in service on 31.03.1979 and retired from service on or after the specified date. The liberalized scheme introduced a slab system for commutation of pension, raised pension ceiling and provided for average emoluments with reference to the last 10 months service. Consequently, the pensioners who retired prior to the specified date had to earn pension on the average 36 months salary just preceding the date of retirement. Thus, they suffered triple jeopardy viz. lower average emoluments, absence of slab system and lower ceiling. It was in this context that the Apex Court held that pensioners form a class as a whole and cannot be micro-classified by arbitrary, manipulated and unreasonable eligibility criteria for the purpose of grant of revised pension. The Apex Court held that the words `who were in service on or after are words of limitation introducing the mischief and are vulnerable as denying equality and this part of the sentence was declared as unconstitutional and struck down. It was held that liberalized pension scheme will become operative to all pensioners governed by 1979 rules, irrespective of date of retirement. At this stage it will be useful to quote relevant portions of paras 47 to 49 of the judgment in D.S. Nakaras case (supra), which thus read:
47. Undoubtedly when an upward revision is introduced, a date from which it becomes effective has to be provided . It is the event of retirement subsequent to the specified date which introduces discrimination in one otherwise homogeneous class of pensioners. This arbitrary selection of the happening of event subsequent to specified date denies equality of treatment of persons belonging to the same class, some preferred and some omitted. Is this eligibility qualification severable?
48. It was very seriously contended, remove the event correlated to date and examine whether the scheme is workable. We find no difficulty in implementing the scheme omitting the event happening after the specified date retaining the more humane formula for computation by applying the rule of average emoluments as set out in Rule 34 and introducing the slab system and the amount worked out within the floor and the ceiling.
49. But we make it abundantly clear that arrears are not required to be made because to that extent the scheme is prospective. All pensioners wherever they retired would be covered by the liberalised pension scheme, because the scheme is a scheme for payment of pension to a pensioner governed by 1972 Rules. The date of retirement is irrelevant. But the revised scheme would be operative from the date mentioned in the scheme and would bring under its umbrella all existing pensioners and those who retired subsequent to that date. In case of pensioners, who retired prior to the specified date, their pension would be computed afresh and would be payable in future commencing from the specified date. No arrears would be payable. And that would take care of the grievance of retrospectivity. In our opinion, it would make a marginal difference in the case of past pensioners because the emoluments are not revised (Emphasis added)
5. Thus the Apex Court in the case of D.S. Nakara (supra) has not held that the cut off date when an upward revision is introduced cannot be prescribed and is arbitrary At this stage it may also be useful to notice the decision of the Constitution Bench of the Apex Court in the case of Indian Ex-Servicemen League and others v. Union of India, (1991) 2 SCC 104, whereby the Apex Court explained the ratio laid down in the case of D.S. Nakara (supra) and has also relied upon its earlier constitution Bench decision in the case of Krishena Kumar v. Union of India, (1990) 4 SCC 207 and held that the Courts decision in D.S. Nakara (supra) has to be read as one of limited application and its ambit cannot be enlarged to cover all claims made by the pension retirees or a demand for an identical amount of pension to every retiree from the same rank irrespective of the date of retirement, even though the reckonable emoluments for the purpose of computation of their pension be different.
6. Further the Apex Court in the case of Govt. of Andhra Pradesh and others v. N. Subbarayudu and others, (2008) 14 SCC 702 has held that even if no reason is forth-coming for fixation of particular date it should not be interfered with by the Court unless the cut off date leads to some blatantly capricious or outrageous result. At this stage, it will be useful to quota paras 5-9 of the judgment, which read thus:
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. (See State of Punjab & Ors. Vs. Amar Nath Goyal (2005) 6 SCC 754).
6. No doubt in D.S. Nakara & Ors. 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), as observed in para 29 of the decision of this Court in State of Punjab & Ors. vs. Amar Nath Goyal.
7. There may be various considerations in the mind of the executive authorities due to which a particular cut off date has been fixed. These considerations can be financial, administrative or other considerations. The Court must exercise judicial restraint and must ordinarily leave it to the executive authorities to fix the cut off date. The Government must be left with some leeway and free play at the joints in this connection.
8. In fact several decisions of this Court have gone to the extent of saying that the choice of a cut off date cannot be dubbed as arbitrary even if no particular reason is given for the same in the counter affidavit filed by the Government, (unless it is shown to be totally capricious or whimsical) vide State of Bihar vs. Ramjee Prasad 1990(3) SCC 368, Union of Indian & Anr. vs. Sudhir Kumar Jaiswal 1994(4) SCC 212 (vide para 5), Ramrao & Ors. vs. All India Backward Class Bank Employees Welfare Association & Ors. 2004 (2) SCC 76 vide para 31), University Grants Commission vs. Sadhana Chaudhary & Ors. 1996(10) SCC 536, etc. It follows, therefore, that even if no reason has been given in the counter affidavit of the Government or the executive authority as to why a particular cut off date has been chosen, the Court must still not declare that date to be arbitrary and violative of Article 14 unless the said cut off date leads to some blatantly capricious or outrageous result.
9. As has been held by this Court in Divisional Manager, Aravali Golf Club & Anr. vs. Chander Hass & Anr. 2008(3) 3 JT 221 and in Government of Andhra Pradesh & Ors. vs. Smt. P. Laxmi Devi 2008(2) 8 JT 639 the Court must maintain judicial restraint in matters relating to the legislative or executive domain.
7. Yet in another decision in the case of Union of India v. S.R. Dhingra and others, (2008) 2 SCC 229 the Apex Court relying upon its earlier decision in para-25 has made the following observations:
25. It is well settled that when two sets of employees of the same rank retire at different points of time, one set cannot claim the benefit extended to the other set on the ground that they are similarly situated. Though they retired with the same rank, they are not of the same class or homogeneous group. Hence Article 14 has no application. The employer can validly fix a cut-off date for introducing any new pension/retirement scheme or for discontinuance of any existing scheme. What is discriminatory is introduction of a benefit retrospectively (or prospectively) fixing a cut-off date arbitrarily thereby dividing a single homogenous class of pensioners into two groups and subjecting them to different treatment (vide Col B.J. Akkara (Retd) vs. Govt of India, (2006) 11 SCC 709, D.S. Nakara vs. Union of India (1983) 1 SCC 305, Krishna Kumar vs. Union of India (1990) 4 SCC 207, Indian Ex-Services League vs. Union of India (1991) 2 SCC 104, V. Kasturi vs. Managing Director, State Bank of India (1998) 8 SCC 30 and Union of India vs. Dr. Vijayapurapu Subbayamma (2000) 7 SCC 662).
8. If the matter is seen in the light of the law laid down by the Apex Court, as noticed above, it cannot be said that fixation of cut off date of 1.1.2006 for the purpose of extending retiral benefits is arbitrary and it is permissible for the Government to fix a cut off date for introducing any new pension/retirement scheme or for discontinuing of any existing scheme. Thus, the challenge made by the applicants based upon the judgment in D.S. Nakara (supra) that pre-2006 retirees should be extended the same pensionary benefits as that of post-2006 retirees cannot be accepted.
9. Yet for another reason, pre-1.1.2006 and post-2006 retirees cannot be extended the same pensionary benefits inasmuch as the respondents on the basis of the recommendations of the VI CPC have issued two different Schemes for pre-2006 and post-2006 retirees. As regards, post-2006 retirees respondents have issued OM dated 2.9.2008 as to how the pension has to be computed. As can be seen from this scheme, emoluments have to be computed on the basis of the revised pay structure and further as can be seen from paras 5.2 and 5.3 of the said OM qualifying service for the purpose of pension has been reckoned as 20 years as against 33 years, which was prevalent in respect of the employees who retired before 1.1.2006 and also that emoluments for the purpose of pensionary benefits have to be determined on the basis of 10 months average emoluments or emoluments last drawn by the employee before his retirement, whichever is more beneficial. Applicants have not challenged the validity of the OM dated 2.9.2008. As such, on these grounds pre-2006 retirees cannot claim benefit at par with post-2006 retirees, who are governed by the separate set of Scheme. The learned counsel for the respondents argue that the above findings/observations of the Tribunal remain incontrovertible. The above observations of this Honble Tribunal in its Order dated 1.11.2011 in OA No. 655/2010, therefore, hold good in the case of present OAs. Therefore, there is no force in the prayer of the Applicants seeking parity in pension with the post 1.1.2006 retirees.
32. The respondents have also relied upon the following judgments in support of their contentions:
(1). Union of India Vs. P.N.Menon, JT 1994 (3) SC 26, wherein the Court has held as follows:-
As such any revised scheme in respect of post-retirement benefits, if implemented with a cut off date, which can be held to be reasonable and rational in the light or Article 14 of the Constitution, need not be held to be invalid. It shall not amount to picking out a date from the hat, as was said by this Court in the case of D.R.Nim v. Union of India, AIR 1967 SC 1301, in connection with fixation of seniority. 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. (2) State of Punjab and Others Vs. Amar Nath Goyal and Others, 2005 SCC (L&S) 910, particularly para 29 and 30 of the judgment which reads thus:
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 classifications 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 a continuing benefit like pension; it is a one-time benefit like gratuity.
30. In Union of India v. P.N. Menon, while implementing the recommendations of the Third Pay Commission with regard to dearness pay linked to average index level 272, which was to be counted as emoluments for pension and gratuity under Central Civil Services (Pension) Rules, 1972, the Central Government had fixed a certain cut-off date and directed that only officers retiring on or after the specified date were entitled to the benefits of the dearness pay being counted for the purpose of retirement benefits. This was challenged as arbitrary and violative of Article 14 of the Constitution. This Court turned down the challenge and observed:
"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 extending a particular benefit or scheme, has been fixed, on objective and rational considerations."
(3) Union of India Vs. S.R. Dhingra and others, (2008) 2 SCC 229, para 25 whereof reads thus:
25. It is well settled that when two sets of employees of the same rank retire at different points of time, one set cannot claim the benefit extended to the other set on the ground that they are similarly situated. Though they retired with the same rank, they are not of the same class or homogeneous group. Hence Article 14 has no application. The employer can validly fix a cut-off date for introducing any new pension/retirement scheme or for discontinuance of any existing scheme. What is discriminatory is introduction of a benefit retrospectively (or prospectively) fixing a cut-off date arbitrarily thereby dividing a single homogenous class of pensioners into two groups and subjecting them to different treatment (vide Col B.J. Akkara (Retd) vs. Govt. of India, (2006) 11 SCC 709, D.S. Nakara vs. Union of India (1983) 1 SCC 305, Krishna Kumar vs. Union of India (1990) 4 SCC 207, Indian Ex-Services League vs. Union of India (1991) 2 SCC 104, V. Kasturi vs. Managing Director, State Bank of India (1998) 8 SCC 30 and Union of India vs. Dr. Vijayapurapu Subbayamma (2000) 7 SCC 662). (4) Government of Andhra Pradesh and ors. Vs. N. Subbarayudu and ors., 2008 (4) SLR 136, para 5 and 7 whereof read as follows:
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 (see State of Punjab & Ors. v. Amar Nath Goyal & Ors., (2005) 6 SCC 754 :[2006 (1) SLR 145 (SC)].
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7. There may be various considerations in the mind of the executive authorities due to which a particular cut off date has been fixed. These considerations can be financial, administrative or other considerations. The Court must exercise judicial restraint and must ordinarily leave it to the executive authorities to fix the cut off date. The Government must be left with some leeway and free play at the joints in this connection. (5) M.M.P. Sinha Vs. UOI & ors., O.A. 284/2009 decided by the Patna Bench of the Central Administrative Tribunal.
(6) Dr. K.R. Munim Vs. Union of India, O.A. 780/2009 decided by the Mumbai Bench of the Central Administrative Tribunal.
33. The applicants relied upon the following judgment:
(1) Union of India and Another Vs. SPS Vains (Retd) and Others, (2008) 9 SCC 125, in which ratio that was decided is quoted below, as contained in para 26 and 27 of the judgment of the Honble Court:
26. The said decision of the Central Government does not address the problem of a disparity having created within the same class so that two officers both retiring as Major Generals, one prior to 1.1.1996 and the other after 1.1.1996, would get two different amounts of pension. While the officers who retired prior to 1.1.1996 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 1.1.1996 will get a higher amount of pension since they would be entitled to the benefit of the revision of pay scales after 1.1.1996.
27. In our view, it would be arbitrary to allow such a situation to continue since the same also offends the provisions of Article 14 of the Constitution.
34. The learned counsel for the applicants argued that in SPS Vains (supra), the Honble Supreme Court had clearly laid down the ratio that there cannot be disparity in determination of pension between pre 1.01.1996 and post 1.01.1996 retirees who retired from defence services as Major General or equivalent posts. While the facts of the cited case relate to disparity between the posts of Major General and Brigadier, the ratio is equally applicable to all cases including the cases of S-30 pensioners.
35. The learned counsel for the applicants also cited the order of the Chandigarh Bench of the Armed Forces Tribunal in OA No. 522/2010, Sqn. Ldr. SS Matharu & Ors Vs. Union of India and Others, which relied on the Apex Court decision in SPS Vains (supra). Our attention was also drawn to the judgment of the Honble Supreme Court in Bank of India and Another Vs. K. Mohandas and Others, 2009 (5) SCC 313, specifically to para 54, 55, 56 and 59 to emphasize the issue that what is of the essence in a decision is its ratio and not every observation found therein.
36. The learned counsel for the applicants stated that in case the Tribunal is persuaded to believe that the ratio in SPS Vains (supra) and D.S. Nakara (supra) does not apply to this particular case, then the Tribunal may consider that fact that there was historical parity between the minimum of S-30 and S-31 scales and these scales were interchangeable as S-29 was feeder grade both for S-30 and S-31. As indicated in the DoP&T OM dated 25.05.1998, the fixed qualifying service is nil between S-30 and S-31. Moreover promotion to S-33 is both from S-31 and S-32 for which the qualifying service is two years. Therefore, no distinction can be made between S-30 and S-31 scales and on that ground the minimum pension both for S-30 and S-31 should be Rs.37750/- for pre-2006 retirees.
37. The applicants also countered the claim of the respondents that Army scales are overlapping by producing copy of page 1913 of V Pay Commission report in which the Army pay scales have been indicated as under:-
(Rs) Lieutenant 8250-300-10050 Captain 9600-300-11400 Major 11600-325-14850 Lt.Colonel 13500-400-17100 Colonel 15100-450-17350 Brigadier 15310-450-17600 In addition, the following rank pay may be granted.
Rank Pay ( Rs.) Captain 400 Major 1200 Lt.Col. 1600 Col. 2000 Brig. 2400
38. It was further argued on behalf of applicants that the OM dated 18.11.2009, relied upon by the respondents, is clearly not applicable as it cannot overreach the law as laid down by the Honble Supreme Court in SPS Vains (supra). Therefore, the applicants in the relief clause have also prayed for striking down the OM dated 18.11.2009. Moreover, from para 10 of the order in SPS. Vains (supra), it is clear that the respondents themselves have accepted that the pension of higher rank officers cannot be lower than that of lower rank officer. In para 18 and 25, the Court recorded as follows:
18. It was also the respondents' case that though there was no dispute that Major Generals were entitled to higher pensionary benefits than that enjoyed by Brigadiers, the appellant erroneously insisted that the cut-off date had to be fixed in view of the limited financial resources available to cover the additional expenses to be incurred on account of revision of pay scales.
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25. The learned Additional Solicitor General, Mr. Vikas Singh, had contended that since an anomaly had been created in the pension payable to officers of the rank of Major Generals, who on account of the revision of pay scales were receiving less pension than Brigadiers who were lower in rank, the Government had stepped up the pension of Major Generals who had retired prior to 1.1.1996, so that they did not receive pension less than what was given to officers of the rank of Brigadier. Therefore, the learned counsel for the applicants stated that the judgment in SPS Vains (supra) will definitely apply in this case.
39. The learned counsel for the applicants also drew our attention to para 29 (c) of the order dated 1.11.2011 of the Full Bench of this Tribunal in OA 655/2010 with connected cases, where the Tribunal held as follows:
29 (c) If the erroneous interpretation of the Department of Pension is accepted, it would mean that a Director level officer retiring after putting in merely 2 years of service in their pay band (S-24) would draw more pension than a S-29 grade officer retiring before 1.1.2006 and that no S-29 grade officer, whether existing or holding post in future will be fixed at minimum of the pay band, i.e., Rs.37,400/-. Therefore, fixation of pay at Rs.37,400/- by terming it as minimum of the pay in the pay band is erroneous and ill conceived. Similarly, in para 30, the Tribunal held as follows:
30. In view of what has been stated above, we are of the view that the clarificatory OM dated 3.10.2008 and further OM dated 14.10.2008 (which is also based upon clarificatory OM dated 3.10.2008) and OM dated 11.02.2009, whereby representation was rejected by common order, are required to be quashed and set aside, which are accordingly do. Respondents are directed to re-fix the pension of all pre-2006 retirees w.e.f. 1.1.2006, based on the resolution dated 29.08.2008 and in the light of our observations made above. Let the respondents re-fix the pension and pay the arrears thereof within a period of 3 months from the date of receipt of a copy of this order. OAs are allowed in the aforesaid terms, with no order as to interest and costs.
40. The learned counsel for the applicants also stated that in none of the cases cited by the respondents, the issue of higher officer getting lower pension was an issue before the Honble Court/Tribunal. For example, P.N.Menons case (supra) relates to treating a portion of dearness allowance as pay in respect of Government servants retiring after 30.9.1977. Similarly in B.J.Akkaras case, the issue involved was of Non Practicing Allowance (NPA) for pre-retirees and post retirees. It is asserted that all the judgments referred to by the respondents relate to whether cut off date can be introduced or not, whereas in the present matter, the applicants have not challenged the cut off date of 1.01.1996. Similarly, in S.R.Dhingras case (supra), the question was of running allowance to be taken into account while determining pension of pre- 1.01.1986 and post-1.01.1986 retirees. In fact, the learned counsel referred to para 8 of the judgment in P.N.Menons case (supra) and stated that any revised scheme in respect of post-retirement benefits, if implemented with a cut off date, which can be held to be reasonable and rational in the light of Article 14 of the Constitution, need not be held to be invalid.
41. The learned counsel for the applicants vehemently argued that a pre-1996 Additional Secretary rank officer getting pension less than post-1996 retired officer in the rank of Joint Secretary and Director is neither reasonable nor rational and hence cannot be held to be justified.
42. We have heard learned counsel for the parties, gone through the records and perused the judgments cited.
43. The question, therefore, revolves around the issue whether SPS Vains judgment and D.S. Nakaras judgment (supra) will apply in the present case. In Nakaras judgment, the question that was raised is contained in para 2 of the judgment, which reads as follows:
2. Do pensioners entitled to receive superannuation or retiring pension under Central Civil Services (Pension) Rules, 1972 ('1972 Rules' for short) form a class as a whole'? Is the date of retirement a relevant consideration for eligibility when a revised formula for computation of pension is ushered in and made effective from a specified date? Would differential treatment to pensioners related to the date of retirement qua the revised formula for computation of pension attract Article 14 of the Constitution and the element of discrimination liable to be declared unconstitutional as being violative of Article 14? These and the related questions debated in this group of petitions call for an answer in the backdrop of a welfare State and bearing in mind that pension is a socio-economic justice measure providing relief when advancing age gradually but irrevocably impairs capacity to stand on one's own feet. and the Honble Supreme Court answered the questions as follows:
(1) Pension is neither a bounty not a matter of grace depending upon the sweet will of the employer, nor an ex gratia payment. It is a payment for the past service rendered. It is a social welfare measure rendering socio-economic justice to those who in the hey-day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch. Pension as a retirement benefit is in consonance with and furtherance of the goals of the Constitution. The most practical raison detre for pension is the inability to provide for oneself due to old age. It creates a vested right and is governed by the statutory rules such as the Central Civil Services (Pension) Rules which are enacted in exercise of power conferred by Article 309 and 148 (5) of the Constitution.
xxxx xxxx xxxx In the present case Article 14 is wholly violated inasmuch as the pension rules being statutory in character, the amended rules, since the specified date, accord differential and discriminatory treatment to equals in the matter of commutation of pension. It would have a traumatic effect on those who retired just before that date. This division which classified pensioners into two classes is artificial and arbitrary, is not based on any rational principle and whatever principle, if there be any, has not only no nexus to the objects sought to be achieved by liberalizing the pension rules, but is counter-productive and runs counter to the whole gamut of the pension scheme. Further, there is not a single acceptable or persuasive reason for this division. Therefore, the classification does not stand the test of Article 14.
xxxx xxxx xxxx Date of retirement cannot form a valid criterion for classification, for if that be the criterion those who retire at the end of every month shall form a class by themselves. This is too microscopic a classification to be upheld for any valid purpose.
xxxx xxxx xxxx The basic principle which informs both Articles 14 and 16 is equality and inhibition against discrimination. Article 14 strikes at arbitrariness because any action that is arbitrary must necessarily involve negation of equality. Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation which classification must satisfy the twin tests of classification being founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question.
44. In the Vains judgment also, the ratio of the judgment can be seen from the issue raised by the Honble Supreme Court in para 4 of its judgment and the ratio it lays down in para 27. Para 4 and para 27 of the judgment are quoted below:
4. The larger issue involved is whether there could be a disparity in payment of pension to officers of the same rank, who had retired prior to the introduction of the revised pay scales, with those who retired thereafter.
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27. In our view, it would be arbitrary to allow such a situation to continue since the same also offends the provisions of Article 14 of the Constitution. It would be clear from the above that the stand of the respondents that the judgment in SPS Vains case (supra) will not apply in the case of civil pensioners, cannot be a valid argument because the ratio laid down is that there cannot be a disparity in payment of pension to officers of the same rank, who had retired prior to the introduction of the revised pay scales, with those, who retired thereafter. The case of Brigadier and Major General in the Army is only an example. Thus, even if the facts of the case are different, the ratio would apply.
45. Therefore, in our view, the ratio laid down in the judgment of the Honble Supreme Court in SPS Vains (supra) that there can be no disparity in payment of pension to officers of the same rank, who had retired prior to the introduction of the revised pay scales, with those, who retired thereafter will hold good in the present case. In fact, SPS Vains judgment (supra) relies on D.S. Nakaras case (supra) in which the Honble Supreme Court has held that fixation of cut off date which runs counter to the whole gamut of Pension Scheme and equal treatment guaranteed in Article 14 is wholly arbitrary. In fact, even if for the sake of argument, we accept the proposition of the respondents that SPS Vains case (supra) is not applicable here, the present OAs are fully covered by the judgment in Nakaras case (supra). The Nakara case was regarding revision of pensionary benefits and classification of pensioners into two groups by drawing a cut-off line and granting revised pensionary benefits to employees retired on or after the cut-off date. The criteria made applicable was being in service and retiring subsequent to specified date. The Honble Supreme Court held that application of such a criteria is violative of Article 14 of the Constitution of India as it is arbitrary and discriminatory in nature. The Court held that those who retired before and after the said cut-off date, formed one class of pensioner and the classification into two groups was not founded on any intelligible differentia. The Nakara case arose under similar circumstances when in 1979, the formula for computation of pension was liberalized but made applicable to government servants who were in service on March 31, 1979 and retired from service on or after that specified period. Consequently, the pensioners who retired prior to the specified date, earned lesser pension though they might have been holding the same post. The situation is identical in the present case. Therefore, this case is covered on all fours by the Nakara judgment. We also agree with the learned counsel for the applicants that the judgments cited by the respondents relate to different facts and the issue of disparity in pension of the officers of the same rank was not an issue before the Honble Supreme Court/ Tribunal in those cases. Further, none of the judgments cited by the respondents have negated the ratio laid in SPS Vains (supra) or D.S. Nakara (supra) and, therefore, are not relevant here.
46. Though neither side has raised this issue during the course of arguments, it may be felt that a Pension Scheme falls in the realm of policy making by the government and thus the Tribunal should refrain from interference unless the decision is palpably unreasonable or not in accordance with the law. In the present case, we are of the opinion that the classification of the pensioners into two classes, whereby one class would draw pension not only less than those who retired from the same post after the cut-off date but also lesser pension than those who retired post cut-off date from the posts which are 2-3 grades below that of the applicants is absolutely unreasonable. Moreover, as mentioned earlier, the Nakara judgment was passed in exactly a similar background of facts and the Court held that this kind of classification is illegal.
47. We are of the considered view that the OM dated 18.11.2009 is illegal, being contrary to the law laid down by the Honble Supreme Court in SPS Vains (supra) and D.S. Nakara (supra) and is, therefore, quashed and set aside. We direct the respondents to consider the revised pay of the applicants corresponding to the pay at which the concerned pensioner had in fact retired, instead of considering the minimum of the said pay scale, thereby determining pension/ family pension to pre-2006 retirees. This will automatically take care of the apprehensions of the applicants that their pension could be fixed below the pension fixed of post-2006 retirees who had worked in the lower pay scales viz. S-24 S-29 pay scales. We, however, reject the claim of the applicants to confer the minimum notional pay scale starting at Rs.75500/- to the applicants as this is a matter which should be best left to expert bodies like Pay Commissions and the Tribunal would not like to enter into this arena. In any case, seeking parity based on just the `minimum of the scales being same is not a convincing argument and would lead to opening up a Pandoras Box. The respondents are directed to refix pension/ family pension of the applicants with effect from 1.01.2006 according to the above direction. The arrears, however, would be payable only from the date of filing of the respective OAs. The respondents shall complete the above exercise and pay the arrears, within three months from the date of receipt of a certified copy of this order, failing which they are liable to pay interest on arrears at G.P.F. rates w.e.f. the date of this order. With these directions, the OAs are disposed of.
(P.K. Basu) (V. Ajay Kumar) (Syed Rafat Alam) Member (A) Member (J) Chairman /dkm/