Amarendra Nath Misra & Ors vs Union Of India & Ors

(4),(12)

(4),(12)

Rs.80,000/- (fixed)","Deputation/Absorption

(i) Officers of the Central Government appointed on

a regular basis in the grade of Pay Band-4

Rs.37,400-67,000 with Grade Pay of Rs.12,000/-.

AND possessing the following qualification:-

(i) Having at least fifteen years of experience in

administering and running the direct tax

administration in the Central Government with at

least ten years of experience in the field formations

of Central Board of Direct Taxes.

(ii) Having high professional merit and excellence;

and

(iii) Having impeccable reputation of integrity.

Note : 1. The normal eligibility conditions of

maximum age of 56 years on the date of closing of

applications shall not be applicable in cases of

absorption.

No person with less than one year residual service

on the date of occurrence of vacancy for which

selection is being made shall be eligible for

consideration

rules were notified on 24.12.2008, these provided for only the revised pay scale for the posts of Chairman/Members of CBDT and CBEC.",

Respondents on their part seek much reliance on the Ministry of Finance's communication dated 01.01.2009 to contend that the post of,

Chairman/Member of CBDT and CBEC was upgraded to apex pay of Rs. 80,000/- (fixed) equivalent to the status of Special Secretary to the Govt.",

of India w.e.f. 24.12.2008. Rules notified on 24.12.2008 do not suggest so. Communication of the Ministry of Finance dated 01.01.2009, reads as",

under :,

F. No. 50/37/2008-Ad:1",

Government of India,

Ministry of Finance,

Department of Revenue,

New Delhi, the 1st Jan, 2009",

SANCTION ORDER NO.01/2009,

Subject : Up-gradation of the rank and pay of the post of Members in the Central Board of Excise & Customs (CBEC) and the Central Board of,

Direct Taxes (CBDT)-Sanction regarding.,

The President is pleased to sanction the up-gradation of the pay scale of the post of Member in the Central Board of Excise & Customs (CBEC) and,

the Central Board of Direct Taxes (CBDT) from HAG+Scale of Rs.75,500-80,000/- (pre-revised scale of Rs.24050-650-26000) to the apex scale of",

Rs.80,000 (fixed) with the rank of Special-Secretary to the Govt. of India with effect from 24/12/2008.",

The expenditure involved shall be met out of the budget grant of the Ministry of Finance, Department of Revenue- Grant No.41.",

This issues with the concurrence of the Department of Expenditure vide their ID Note F 2623/JS(Per) dated 01/10/2008 and IFU's Diary No.,

1506/2008-IFU.III dated 29.12.08.,

Sd/-""",

Does this sanction order no. 01/2009 have the effect of amending the recruitment rules notified on 24.12.2008 and that too retrospectively, one",

wonders. To our mind, it cannot be construed so. Recruitment rules which are promulgated by the Ministry of Personnel cannot be altered or amended",

by the Ministry of Finance, as is sought to be contended. Plea of the respondents to the contrary is therefore bound to fail. It appears that CAT has",

overlooked such a vital aspect of the matter. Fixation of pay scale of Rs. 80,000/- (fixed) under the rules notified on 24.12.2008, in our considered",

view, cannot be said to be premised on upgradation of either the rank or the post. The recruitment rules notified on 24.12.2008 simply provide for",

revised pay scale for the post of Chairman/Member, CBDT/CBEC, without any reference to their posts being upgraded to be equivalent to the rank of",

Special-Secretary to the Govt. of India. Drawing any other conclusion adverting to sanction order no.01/2009 dated 01.01.2009 would therefore be not,

sustainable. In view thereof, the contention of Mr. Bhardwaj, learned Central Govt. Standing Counsel that the posts of Member, CBDT/CBEC were",

upgraded to apex pay of Rs. 80,000/-(fixed) w.e.f. 24.12.2008 placing reliance upon the judgment of the Supreme Court in K.S. Krishnaswamy etc.",

vs. Union of India & Anr. [Appeal (Civil) 3174 of 2006] and Union of India vs. R. Sethumadhvan & Anr. (Civil Appeal no.3173 of 2018) is wholly,

misplaced and is rejected. In Krishnaswamay's case (supra), the question(s) inter alia was only as regards the applicable corresponding scale of pay",

on the implementation of the 5th Pay Commission and not the post, from which the incumbent retired. Similar was Sethumadhvan's case (supra).",

Vains case (supra) adverted to by the respondents is of course, of no avail to the petitioners inasmuch as the petitioners' case is of the Civil servants",

governed by CCS (CCA) Rules.,

As regards the contention of benefit of upgradation inuring only to the persons who were in service on the date of upgradation of the post, it would",

be relevant to note that the computation of pension has to be with respect to the scale of pay applicable to the post on which the incumbent retired.,

Suffice to say, the petitioners' case is of revision of their pension on the basis of the revised pay scale and not on the basis of any assumed or",

categorised upgraded post. O.M. dated 01.09.2008 which inter alia relates to the implementation of Government's decision on the recommendations of,

the 6th CPC-revision of pension of pre-2006 pensioners/family pensioners etc. in para 4.2 provides as under :,

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.""",

The above-said clause of the said O.M. dated 01.09.2008 squarely covers the case of the petitioners. In view thereof, the impugned O.M.s, as far as",

the petitioners are concerned, have no application to their cases. Here, it is also relevant to note that in the instant writ petition, the petitioners have",

restricted the relief only as regards the fixation of their pension w.e.f. 24.12.2008 as it appears the pension prior thereto has already been fixed as,

asserted to by them in the O.A. no. 1586/2010.,

In view of the foregoing, the impugned order of CAT is set aside and the respondents are directed to re-fix the pension of the petitioners @ Rs.",

40,000/- per month w.e.f. 24.12.2008 and the arrears be paid within eight weeks from today. Petition stands disposed of accordingly. No order as to",

costs.,