C.M. Dubey & Ors vs Union Of India & Ors

Dr. Chhabilendra Roul, Member (A)

The present OA has been filed by the applicants, Shri C.M.Dubey, Applicant No.1 and Shri P.S. Nagar, Applicant No.2 against revised PPOs issued in respect of them vide order No. F.No. 18(4423) 2006 – KVS(HQ)/P&B/A25 dated 18/19.6. 2019 and order No.F.No. 18(275) 2651/97-KVS(HQ)/P&B 3118-19 dated 17/19.06.2019 respectively.

The brief facts of the case are as follow:-

The applicant No. 1 was retired on 30.06.2005 from the post of Principal while working in Kendriya Vidyalaya No.3, Bhopal. The applicant No.2 was retired on 31.01.1998 from the post of Principal while working in Kendriya Vidyalaya Naya Gaon (Madhya Pradesh). As both of them were retired prior to 1.1.2006, their pay scale to the post of Principal at the time of their retirement was Rs. 10,000-15,200/- as per the 5th CPC recommendations. At the time of retirement they were granted their retiral benefits as per this pay scale. Subsequently, the Government of India accepted the 6th CPC recommendations vide notification dated 29.08.2006 and revised the pay scales of all the posts was applicable w.e.f. 1.1.2006. The pay scale of Principal in the K.V.S. was upgraded from Rs.10,000-15200/- to Rs. 12000-16500 with the revised scale of PB-III + GP Rs. 7600/-. The Government of India vide OM dated 11.02.2009 clarified that the benefit of up-gradation of posts subsequent to their retirement would not be admissible to the pre-2006 pensioners. However the matter was challenged before the CAT, PB, New Delhi and its Full Bench allowed parity with the pensioners who retired prior to 1.1.2006 to that of retirees of after that date. The judgment of the Full Bench of the Tribunal was upheld by the Hon’ble High Court and subsequently by the Hon’ble Supreme Court. The DOP&T issued a series of clarifications for revising of pension of pre-2006 pensioners vide its order No. F.No.38/37/08-P&PW(A) dated 28.1.2013 and order No. 38/37/08-P&PW(A) dated 30.7.2015. The OM dated 30.7.2015 was reference to paragraph 9 of OM dated 28.1.2013 which provided for stepping up of pension for pre-2006 pensioners w.e.f. 24.09.2012 to 50% of the sum of minimum of pay in the pay band and the grade pay corresponding to the pre-revised pay scale from which the pensioner had retired. When the Union of India challenged the decision of the Full Bench of PB, New Delhi order dated 1.11.2011 in OA No. 655/2010, the Court observed that the only issue which survived was with reference to paragraph 9 of OM dated 28.1.2013 which makes it applicable to w.e.f. 24.09.2012 instead of 1.1.2006. The Hon’ble High Court dismissed the Writ Petition and also the Special Leave Petition was also dismissed by the Hon’ble Supreme Court. In compliance of above judicial pronouncement, the DOP&T issued OM dated 30.07.2015. It was specifically clarified that “accordingly, in compliance with the above judicial pronouncements, it has been decided that the pension/family pension of all pre-2006 pensioners /family pensioners may be revised in accordance with this Department’s Om No. 38/37/08-P&PW (A) dated 28.1.2013 with effect from 1.1.2006 instead of 24.09.2012.” Again the DOP&T vide OM No.38/37/08-P&PW(A) dated 6.4.2016 also clarified above direction contained in OM dated 30.7.2015 and further clarified regarding delinking of revised pension from qualifying services of 33 years. It is specifically mentioned that:

In accordance with the order issued in implementation of the recommendation of the 6th CPC, the pension of Government servants retired/retiring on or after 1.1.2006 has been delinked from qualifying service of 33 years. In OA No. 715/2012 filed by Shri. M.O. Inasu, a pre-2006 pensioner, Hon'ble CAT, Emakulam Bench, vide its order dated 16.8.2013 directed that the revised pension w.e.f. 1.1.2006 under para 4.2 of OM dated 1.9.2008 would not be reduced based on the qualifying service of less than 33 years. The appeals filed by Department of Revenue in the Hon'ble High Court of Kerala and in the Hon'ble Supreme Court have also been dismissed. Similar orders have been passed by Hon'ble CATlHigh Court in several other cases also.

The matter has been examined in consultation with the Ministry of Finance (Department of Expenditure). It has now-been decided that the revised consolidated pension of pre-2006 pensioners shall not be lower than 50% of the minimum of the pay in the Pay Band and the grade pay (wherever applicable) corresponding to the prerevised pay scale as per fitment table without pro-rata reduction of pension even if they had qualifying service of less than 33 years at the time of retirement. Accordingly, Para 5 of this Department's OM of even number dated 28.1.2013 would stand deleted. The arrears of revised pension would be payable with effect from 1.1.2006.

The applicant no. 1 after getting his revised PPO dated 19.6.2019 felt that his revised pension was not carried out in accordance with the decision of the CAT, PB, New Delhi and upheld by the Hon’ble High Court and subsequently by the Hon’ble Supreme Court and as per the OM dated 28.1.2013 and 30.7.2015. As mentioned above, his grievance is that instead of fixing his pre-revised pay scale at Rs.12000-16500/-of PB-III + GP of Rs.7600/-. The pay revision fixed his pension at his pre-revised pay scale of Rs. 12000-15200/-. He claims that the pay scale of the Principal of the KVS were upgraded of Rs.12000-16500 of PB-III + GP of Rs.7600/- but his retirement benefits were considered at the pre-revised pay scale of the Principal of KVS at Rs. 12000-15200. Similarly, the applicant No.2 has stated that he has not been given the benefits of OM dated 8.4.2016 where it has been stated that the pension will not calculated on pro-rata basis if the retiree has not completed qualifying service of 33 years. He has stated that as per para 6 of OM dated 6.4.2016 the revised pension of pre-2006 pensioners should not be less than the 50 % minimum of the pay in the Pay Band and Grade Pay without pro rata reduction of pension even if they had qualifying services of less than 33 years at the time of retirement. According to Applicant No.2, he has not been given this benefit as per OM dated 6.4.2016 and his pension has been reduced on pro rata bases because he has not completed his 33 years of services. Being aggrieved both the applicants have come in the present Original Application before this Tribunal.

On admission of the OA notices were issued to the respondents and they have filed their counter affidavit to which the applicant has also filed his rejoinder to the same.

Learned counsel for the applicant has reiterated the stand taken in the OA. The counsel for the respondents has stated that the petitioners were granted pension of Rs. 14,916 per month w.e.f. 24.09.2002 erroneously taking into account the upgraded pay scale of the Principal at 12000-16500 in PB –III + GP of Rs.7600. This Pay scale actually was admissible only those who were serving as Principal on 1.1.2006, the date on which the 6th CPC recommendations were made applicable. As the applicants retired prior to 1.1.2006 in the pay scale of Rs. 10,000-325-15200/- and the Grade Pay of Rs. 6600/- they were not entitled to get the upgraded pay scale of Principal which were made effective from 1.1.2006. However as per OM dated 28.1.2013 and clarification of OM dated 30.07.2015 their payscales were revised w.e.f. 1.1.2006 stepping up to 50% of the sum of minimum pay in the Pay Band and the Grade Pay corresponding to the pre-revised pay scale from which the pensioners had retired. The learned counsel for the respondents stated that in the counter affidavit the respondents have denied the pension of the applicant No. 2 was fixed on pro rata bases. In view of this, the learned counsel for the respondents stated that OM lacks merit and it should be dismissed.

I have gone through the records of the case thoroughly and heard the arguments carefully.

The learned counsel for the respondents have stated that the pensioners were given enhanced pension erroneously taking into account the upgraded pay scale of the Principal at Rs.12000- 16500/- as it was not applicable to them as they retired as on before 1.1.2006 and hence their revised pension was reduced, making the relevant corrections. The applicants in their OA and their counsel during the course of arguments have not produced any government instructions which allows the applicability of the Grade Pay of Rs. 12000-16500 in PB-III + Grade Pay of Rs.7600 applicable to the Principals who have retired prior to 1.1.2006. The Government has the prerogative to upgrading any particular post to a higher scale and making that applicable prospectively, not retrospectively. After the recommendations of 7th CPC, the grade of Principal were upgraded to 12000 to 16500 in Pay Band III + Grade Pay of Rs. 7600. The corresponding pre revised pay scale of Principal who retired prior to 1.1.2006, as per the fitment table, was Rs.12000-15200 in PB –III + Grade Pay of Rs.7600. The applicants are under the erroneously belief that they are entitled for the enhanced pay scale of Principals which was made effective w.e.f. 1.1.2006. In case of applicant No.2 neither the applicant in his OA nor his counsel during the arguments could produced any calculation sheet as to how the applicant no.2 was not given benefits of the OM dated 6.4.2016. The respondents have in their counter affidavit stated on oath that the applicants have given the benefits as per this OM dated 6.4.2016 and the revised pay of the applicant was not fixed on pro rata basis.

In view of this, the applicants have no cause of grievance and the OA lacks merits and it is dismissed. No order as to costs.

All pending MAs are also disposed of accordingly.