Central Administrative Tribunal - Jodhpur
B L Sharma vs Posts on 22 August, 2023
1 (OA No.290/00049/2022)
CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH
...
OA No.290/00049/2022 Pronounced on : 24.08.2023
(Reserved on : 22.08.2023)
...
CORAM: HON'BLE Dr. NANDITA CHATTERJEE, MEMBER (A)
...
B.L. Sharma, S/o Shri Phusa Ramji Sharma, aged about 90 years,
b/c- Brahman, R/o- H.No.5-D-1, Duplex Colony, Bikaner-334 003
(Raj.) (Office Address:- Retired from service on 28.02.1991 as
Superintendent of Post Offices).
...APPLICANT
BY ADVOCATE : Mr. S.P. Singh.
VERSUS
1. Union of India, through the Secretary, Government of India,
Ministry of Communication, Department of Post, Dak Tar
Bhawn, New Delhi.
2. The Secretary, Ministry of Personnel, Public Grievances &
Pensions, Deptt. Of Pension & Pensioner's Welfare, Lok Nayak
Bhawan, New Delhi-110003.
3. The Chief Postmaster General, Rajasthan Circle, Jaipur-302001.
4. General Manager (Finance), Postal Account Officer, Jhalna
Dungri, Jaipur-302014.
5. The Superintendent of Post Offices, Bikaner Division, Bikaner-
334001.
6. Postmaster, Bikaner HO, Bikaner-334001.
...RESPONDENTS
BY ADVOCATE: Mr. K.S. Yadav.
2 (OA No.290/00049/2022)
ORDER
...
Dr. Nandita Chatterjee, Member (A):-
1. Aggrieved at the rejection of his prayer for grant of additional pension of 20% of basic pension when he had entered 80 years of age, the applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985, praying for the following relief:-
"8. In view of the facts and grounds mentioned in para 4 and 5, above the application prays for the following relief:-
(a) That By writ order or direction the impugned order Memo No.Pen/JP-
PC-100/90/B, dated 12.01.2022 (Annexure A/1) and impugned order Memo No. Account Branch/Pension/2021-2022, dated 25.01.2022 (Annexure A/2) passed by Respondents may kindly be declared illegal, improper and deserves to be quashed and set aside.
(b) That by writ order or direction the respondent may kindly be directed to grant additional pension of 20% of basic pension in favour of the applicant on entry into starting age of 80 i.e. 01.03.2012 soon after completion of 79 years with all consequential benefits, similarly wherever he is entitled on entry of 85 years i.e. 01.03.2017 soon after completion of 84 years and soon after completion of 84 years and starting from 90 years i.e. 01.03.2022, with all consequential benefits and arrears may kindly be released with interest of 18% p.a.
(c) That by writ or direction the respondent may kindly be directed to issue amended PPO if required.
(d) That any other direction or orders may be passed in favour of the applicant, which may be deemed just and proper under the facts and circumstances of this case in the interest of justice.
(e) That the costs of this application may be awarded to the applicant."
2. This matter is taken up by the Single Bench in view of the revised list dated 04.04.2000 and that dated 10.09.2021 issued 3 (OA No.290/00049/2022) under Sub Section (6) of Section 5 of the Administrative Tribunals Act, 1985, as no complicated questions of law is involved in this matter, and, with the consent of the parties.
3. Heard both learned counsel. Examined pleadings and documents on record. It is noted that no rejoinder has been filed by the applicant to the reply dated 12.09.2022 furnished by the respondents.
4. Learned counsel for the applicant would submit that, the applicant was appointed as a Postal Assistant on 01.04.1956, was promoted as an Inspector on 12.05.1966, and, further promoted to the post of Superintendent of Post Offices. The applicant superannuated on 28.02.1991, and his date of birth was noted as 01.03.1933 in his service records.
That, as per Rule 49 (5) of the CCS (Pension) Rules, 1972, the quantum of pension payable to old pensioners would be increased from the age of 80 years by additional pension amounting to 20% of basic pension, and, thereafter in various proportions of 30%, 40%, 50% and 100% upon attaining the age of 85 years, 90 years, 95 years, 100 years and more. According to the applicant, he had entered into 80th year with effect from 01.03.2012, while the respondents considered 01.03.2013 as the starting point for granting 4 (OA No.290/00049/2022) him the additional pension @ 20% of basic pension. Hence, the dispute.
Learned counsel for the applicant would further submit that the applicant had represented on 08.12.2021, claiming his entitlement from the point of time when he had entered 80th year of age. Such prayer was, however, rejected on 17.01.2022 as per Annexure A/1 to the OA, and, hence, being aggrieved, has approached this Tribunal, praying for the aforementioned relief.
5. The applicant would advance the following grounds in support of his claim:-
i) That, the respondents have failed to appreciate correct factual and legal aspects of the matter in their arbitrary rejection order dated 17.01.2022.
ii) That, Rule 49 (5) of the CCS (Pension) Rules, 1972, which provides for additional pension to old pensioners from 01.01.2006, categorically states that the additional quantum of pension amounting to 20% of basic pension would be payable from 80 years to less than 85 years with proportionate enhancements thereafter.
iii) That, as the applicant admittedly had entered into his 80th year with effect from 01.03.2012 and would enter into his 85th year from 01.03.2017, he was entitled to the additional quantum of 20% of 5 (OA No.290/00049/2022) basic pension for the period from 01.03.2012 to 28.02.2013, and, not otherwise.
iv) That, the respondents had failed to take into consideration the prevailing law as contained in Rule 49 (5) of CCS (Pension) Rules, 1972.
v) That, as the applicant's pension is akin to his right to property in terms of Article 300A of the Constitution of India, he cannot be deprived of his additional pension on account of erroneous interpretation of the respondents.
6. The applicant would rely on the judgment of Hon'ble High Court of Gauhati in DB Civil Writ Petition No.4224/2016 (Virendra Dutt Gyani Vs. Union of India & Ors.), decided on 15.03.2018, in which relief was granted to the petitioner who had approached the Hon'ble High Court, praying for similar additional pension.
Further, the Hon'ble Apex Court, in its judgment dated 17.10.2014 in Civil Appeal No.9849/2014 (State of U.P. & Ors. Vs. Arvind Kumar Shrivastava & Ors.), had enumerated the legal principles for dealing with the similarly placed persons as under:-
"(1). Normal rule is that when a particular set of employees to given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this from time 6 (OA No.290/00049/2022) to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach in the Court earlier, they are not to be treated differently."
That, the Hon'ble Apex Court in Mohd. Hanit Quareshi & Ors. Vs. State of Bihar, reported in (AIR 1958 SC 731), and, thereafter, in State of Madhya Pradesh Vs. Rakesh Kohli & Anr., reported in (2012) 6 SCC 312, had held as below:-
"While dealing with the meaning and scope of Article 14 and to pass the tests of permissible classification, two conditions must be fulfilled, namely,
(i) the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (ii) such differentia must have rational relation to the object sought to be achieved by the statute in question."
7. Per contra, learned counsel for the respondents would argue that an amendment was introduced after the recommendations of the 6th Central Pay Commission, upon which, the amount of pension payable to superannuated Government servants as contained in Rule 49 of the CCS (Pension) Rules, 1972, was amended vide notification dated 08.06.2011 inserting clause 49 (2-A), whereby it was provided that additional pension shall be payable to the retired Government servants "after completion of 80 years of age or above", and, additional pension amounting to 20%, 30%, 40%, 50% and 100% of basic pension would be payable, after, the retired pensioners attained 80 years, 85 years, 90 years, 95 years and 100 years of age respectively.
7 (OA No.290/00049/2022)
Accordingly, as such amendment was introduced in 2011 and as the applicant had completed his 80th year of age on 01.03.2013, he was rightly allowed the additional pension of 20% of basic pension, and, hence, the decision of the respondents dated 17.01.2022 is legally correct, and, requires no judicial intervention.
Learned counsel for the respondents would also rebut the application of the decision in Virendra Dutt Gyani (supra) as relied upon by the learned counsel for the applicant in his argument that, while in Virendra Dutt Gyani (supra), the judgement was delivered in interpretation of the High Court Judges (Salaries & Condition of Service) Act, 1954, in the instant matter, the applicant is guided by the provisions of CCS (Pension) Rules, 1972.
Learned counsel would also refer to an OM dated 03.10.2008 (Annexure R/2 to the OA) of the Department of Pension & Pensioner's Welfare (DOP&PW), in which, while clarifying an issue on quantum of family pension available to the old pensioners/family pensioners an illustration was provided as under:-
"For example, if a pensioner/family pensioner completes age of 80 years on any date in the month of August, 2008, he will be entitled to additional pension/family pension w.e.f. 01.08.2008. Those pensioners/family pensioners whose date of birth is 1st August, will also be entitled to additional pension/family pension w.e.f. 01.08.2008 on attaining the age of 80 years and above."8 (OA No.290/00049/2022)
8. Heard the rival contentions. Examined pleadings and documents on record.
The primary rationale advanced by learned counsel for the applicant is that amendments notwithstanding, the provisions of the Table contained in Rule 49 of CCS (Pension) Rules, 1972, should prevail.
And, that, the Hon'ble High Court at Gauhati, while interpreting Section 17 (B) of the High Court and Supreme Court Judges (Salaries & Conditions of Service) Act 1954, as amended, had relied on the Doctrine of Purposive Construction to state that in selecting different interpretations, a Court should adopt that interpretation which is just, reasonable and sensible. A construction that results in hardship, serious inconvenience, injustice, absurdity or anomaly or which leads to inconsistency or uncertainty has to be avoided. Hence, in the background of such principle of Purposive Construction, the Hon'ble Court had concluded that the benefit of additional quantum of pension as per Section 17(B) of the High Court and Supreme Court Judges (Salaries & Conditions of Service) Act, the additional pension in the 1st slab would be available to a retired judge from the first day of his 80th year.
9 (OA No.290/00049/2022)
9. To decide on the issue raised in this matter, this Tribunal would, at the outset, refer to the provisions of Rule 49 of CCS (Pension) Rules, 1972, as amended on 08.06.2011. The said provisions are quoted as under:-
"49. Amount of Pension:
(1) In the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of ten years, the amount of service gratuity shall be calculated at the rate of half month's emoluments for every completed six monthly period of qualifying service.
(1-A) The Dearness Allowance admissible on the date of retirement shall also be treated as emoluments for the purpose of sub-rule (1); (2) Subject to the proviso to sub-rule (2) of Rule 38, in the case of a Government servant retiring in accordance with the provisions of these rules after completing qualifying service of not less than ten years, the amount of pension shall be calculated at fifty per cent of emoluments or average emoluments, whichever is more beneficial to him, subject to a minimum of nine thousand rupees per mensem and maximum of one lakh twenty-five thousand rupees per mensem. (2-A) In addition to pension admissible in accordance with sub-rule (2), after completion of eighty years of age or above, additional pension shall be payable to the retired Government servant in the following manner:-
Age of pensioner Additional pension
From 80 years to less than 85 20% of basic pension.
years
30% of basic pension.
From 85 years to less than 90
years 40% of basic pension.
From 90 years to less than 95 50% of basic pension.
years
100% of basic pension.
From 95 years to less than 100
years
100 years or more
10 (OA No.290/00049/2022)
(3) In calculating the length of qualifying service, fraction of a year equal to three months and above shall be treated as a completed once half-year and reckoned as qualifying service. (4) The amount of pension finally determined under sub-rule (2), shall be expressed in whole rupees and where the pension contains a fraction of a rupee, it shall be rounded off to the next higher rupee. (5) Deleted.
(6) Deleted."
It transpires therefore that, subsequent to the recommendations of 6th CPC, an amendment was consciously introduced in Rule 49 of CCS (Pension) Rules, 1972 in that the additional pension in the first Tier would be admissible to old pensioners only after they complete 80 years of age or above.
Given that the Table appended below states that pensioners "from the age of 80 years to less than 85 years are entitled to additional pension amounting to 20% of basic pension", the principle contained in the Doctrine of Harmonious Construction is invoked to assist this Tribunal to understand as to what was the intent of the amendment.
10. The Doctrine of Harmonious Construction is based on the cardinal principle and law that every statute has been formulated with a specific purpose and intention, and, thereby, courts must construe opposing provisions so as to harmonize the provisions. Accordingly, when the words of statutory provision bear more than 11 (OA No.290/00049/2022) one meaning and there is a doubt as to which meaning should prevail, then such meaning should be adopted by which the words which best harmonize with the subject of the enactment. Accordingly, the statute is to be construed in such a manner so as to avoid any repugnancy as that inconsistencies are not inferred readily therefrom.
The principle contained in the Doctrine of Harmonious Construction was laid down in CIT Vs. Hindustan Bulk Carriers, reported in (2003) 3 SCC 57, wherein the Hon'ble Apex Court ruled as under:-
"* The courts must avoid a head-on clash of seemingly contradicting provisions and they must construe the contradictory provisions so as to harmonize them.
* The provision of one section cannot be used to defeat the provision contained in another unless the court, despite all its effort, is unable to find a way to reconcile their differences.
* when it is impossible to completely reconcile the differences in contradictory provisions, the courts must interpret them in such a way so that effect is given both the provisions as much as possible.
* Courts must also keep in mind that interpretation that reduces one provision to a useless number or dead is not harmonious construction.
* To harmonize is not to destroy any statutory provision or to render it fruitless."
In Bhatia International Vs. Bulk Trading S.A. & Anr., reported in (2002) 4 SCC 105, it was held that, if a statutory provision is open to more than one interpretation, then the Court has 12 (OA No.290/00049/2022) to choose that interpretation which represents the true intention of the legislature. In the instant matter, amendment of Rule 49 (2-A) was inserted subsequent to the recommendations of the 6th CPC to disclose the intent that the provisions of erstwhile Rule 49 (5) of the CCS (Pension) Rules, 1972, which stood as deleted, was substituted by the amendment contained in GSR 176 dated 08.06.2011. The legislative intent as noted in the amendment of 49 (2-A) is that the provisions of additional pension would apply to those pensioners who complete their 80th year of age.
11. Learned counsel for the applicant would rely on Virendra Dutt Gyani (supra) to submit that as the issue contained in Virendra Dutt Gyani (supra) was almost identical to the issue raised by the applicant herein and, hence, the same ratio should apply.
Learned counsel would further go on to cite Arvind Kumar Shrivastava (supra) as well as Mohd. Hanit Quareshi (supra) to aver that similar benefits have to be extended to similarly situated persons, and, any difference must have a rational relation to the object sought to be achieved by the statute in question.
In this context, this Tribunal would refer to the land mark judgment in D.S. Nakara & Ors. Vs. UOI, reported in 1983 (1) SCC 305, which was relied upon by the Hon'ble Apex Court, while 13 (OA No.290/00049/2022) considering the question of differential treatment of persons, in Col. (Retd.) B.J. Akkara Vs. The Govt. of India & Ors. reported in 2006 (11) SCC 709. Placing reliance on D.S. Nakara (supra), the Hon'ble Court ruled as follows:-
"(a) Where the retirees form a single homogenous class, if there is an enhancement by subsequent amendment of pension scheme then all those who retired earlier would be entitled to the benefits of the amendment;
(b) Where the retirees retiring with a particular rank do not form a single class for all purposes and 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 the instant matter, the retiree in Virendra Dutt Gyani (supra) and the instant applicant do not form a single class or a homogenous group of pensioners. In Virendra Dutt Gyani (supra), the petitioner, who was a practising Advocate in the Hon'ble High Court of Madhya Pradesh, was elevated as a Judge to the Madhya Pradesh High Court, and, after his transfer to the Gauhati High Court, he superannuated at the age of 62 years. Hence, the provisions of the High Court and Supreme Court Judges (Salaries & Conditions of Service) Act, applied, consequent to which the Hon'ble High Court at Gauhati interpreted the provisions of Section 17 (B) of such Act (supra) in favour of the petitioner.
14 (OA No.290/00049/2022)
No such amendment as incorporated as Rule 49 (2-A) had, however, been introduced in Section 17(B) at the time of pronouncement of such judgment on 15.03.2018.
12. In the instant matter, the applicant, who was appointed as a Postal Assistant and had retired as Superintendent of Post Offices, is undisputedly guided by the CCS (Pension) Rules, 1972 and amendments thereof. Accordingly, the provisions of Section 17(B) of the High Court Judges Act (supra) would not apply to him, and the ratio of D.S. Nakara (supra) as well as Akkara (supra) clearly allows differential treatment when the retirees do not form a single class for all purposes and emoluments as on their date of retirement.
13. Regarding the amendment inserted in Rule 49 (2-A) of the CCS (Pension) Rules, 1972, and the phrase contained therein, namely, "after completion of 80 years or above" and the preposition "from" 80 years in the Table below, the intent of the amendment is to be inferred based on the principle of the Doctrine of Harmonious Construction. It transpires from a comprehensive reading of the amendment and the Table appended below that, after the introduction of 6th CPC recommendations, the legislative intent was to confer the benefits of additional pension to pensioners who had completed their 80th year in age. Hence, such benefits would only 15 (OA No.290/00049/2022) flow to old pensioners once they completed 80 years of age and entered their 81st year.
This Tribunal, would, therefore, not find any anomaly between the amendment inserted vide Rule 49(2-A) and the Table appended below. This Tribunal would hence conclude that the amendments, so inserted, would prevail in case of the instant applicant, and, that, no judicial intervention is called for in the context of respondent's communication dated 17.01.2022, and, as impugned in the instant OA.
14. Hence, the Original Application fails to succeed on merit and is dismissed accordingly. There will be no orders on costs.
(Dr. NANDITA CHATTERJEE) MEMBER (A) sv