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Judgment
Sunil Thomas, Member (J)
The applicant retired from Railways as a Pointsman-A in the scale of Rs. 3,050-4,590 on 28.02.2007 with the basic pay of Rs. 4,110/- (Vth CPC). The pension was accordingly fixed at Rs. 3,024/-. Under the VIth Pay Commission revision, his pay was revised to Rs. 7,980/- and Grade Pay of Rs. 1,800/- in PB 5,200-20,200. Pension was accordingly revised as Rs. 4,890/- with effect from 01.03.2007. PPO was issued under the VIth CPC revision as Annexure A1. Under the VIIth CPC a fresh PPO was issued as Annexure A2 in Level-1 with a notional pay of Rs. 25,600/- and pension calculated at Rs. 12,800/-. Later on verification of the records, the applicant found that the Grade Pay was Rs. 1,900/- in the VIth CPC in Level-2. However, it was mistakenly shown as Rs. 1,800/-. Hence, he sought to revise pension in the VIIth CPC. Request was made in writing. However, he was informed by Annexure A3 that revised PPO has been issued. However, his pay was reduced from Rs. 25,600/- to Rs. 25,200/-and pension was revised from Rs. 12,800/- to Rs. 12,600/-. Annexure A3 is the revised PPO. A sum of Rs. 9,320/- was recovered from his pension, at the rate of Rs. 1,864/- from September, 2019 to January, 2020.
Representation was submitted. Applicant was informed by Annexure A4 reply dated 26.09.2019 that it was done to rectify an error that had occurred on 28.02.2007 and to rectify the resultant anomaly with effect from 01.01.2016. The grievance of the applicant is that instead of rectifying the deficiency in pay/pension of the applicant, respondents issued Annexure A3 PPO without any increase in basic pension, despite its decrease in GP by Rs. 100/-. Apart from that, notional pay as on 01.01.2016 was reduced to Rs. 25,200/- and pension reduced to Rs. 12,600/- and recovered Rs. 9,320/-. Such a revision to the disadvantage of applicant was in violation of Rule 19 of Railway Service Pension Rules, 1993. A copy of the relevant Rule was produced as Annexure A5. It was also contented that there was no provision to revise the pay and pension in 2019, to revise the applicant's pay and pension with effect from 01.03.2007 which also involves a recovery from pension. Hence, that was contrary to the law laid down by the Hon'ble Apex Court in State of Punjab & Ors. Vs. Rafiq Masih [(2015) 2 SCC (L&S) 33].
Hence, he sought the following reliefs.
''(i) Quash and set aside Annexure A3 PPO and Annexure A4 letter.
(ii) Declare that the applicant is entitled to have his pensionary benefits computed with effect from 01.03.2007 based on a last drawn pay of Rs. 9880 and to direct the respondents accordingly with all consequential benefits.
(iii) Declare that the applicant is entitled to have his notional pay fixed at Rs.26000 and pension at Rs.13000 with effect from 01.01.2016 with all consequential arrears and; direct the respondents accordingly and refund Rs.9320 illegal recovered.''
Reply statement and additional reply statement were filed. Rejoinder also filed by the applicant. Heard both sides and examined the records.
The learned SCGSC, defending the impugned order contented that it was essentially intended to correct a mistake that had occurred in Annexure A1. It was contended that the pay of the applicant as per Annexure A1 ought to have been Rs. 7,880/- instead of Rs. 7,980/- and the grade pay ought to have been Rs. 1,900/- as correctly claimed by the applicant instead of Rs. 1,800/-.
The learned SCGSC relied on the statement given in the additional reply statement to establish the calculation of pay and pension of the applicant from 31.12.2005 during the Vth Pay Commission regime, till his retirement on superannuation on 28.02.2007 prior to the implementation of the VIth CPC, which is as follows:
Pay Scale as on 31.12.2005 w.e.f. 01.08.2005
2,650-4,000
Pay as on 31.12.2005 and w.e.f. 01.08.2005 (DLI)
Rs.3,930
Revised Pay Scale of Rs.2650-4000 in VIth CPC w.e.f 01.01.2006
Rs.5,200-20,200
with GP 1,800
Multiplication factor to arrive at pay w.e.f 01.01.2006 as per VIth CPC
1.86
Pay as on 01.01.2006 = Rs. 3,930 x 1.86 = 7,309.8
Rounded off to Rs. 7,310
Rs.7,310
Applicable Grade Pay – 1,800
Revised Pay w.e.f. 01.01.2006 = Rs.7,310 + GP 1,800
Rs.9,110
Annual increment on 01.07.2006 =3% of 9,110=Rs. 273.3
Rounded off to Rs.280
Revised Pay w.e.f. 01.07.2006 =Rs.7,310+280 =Rs. 7,590+ GP 1,800
Rs. 9,390
Promoted to the post of Pointsman-I on 10.10.2006 in the Pay Scale of Rs. 3,050-4,590
Revised Pay Scale of Rs. 3,050-4,590 in VIth CPC
Rs.5,200-20,200 with GP 1,900
Pay Re-fixation as on 10.10.2006 on promotion =Rs. 7,590-1,800 x 3%=Rs.281.7
Rounded off to Rs.290
Revised Pay w.e.f 10.10.2006 = Rs. 7,590+290 = Rs.7,880 + GP 1,900
Rs. 9,780
Applicant retired on 28.2.2007 before the date of next increment.
Pension = 50% of the last pay drawn = Rs. 9,780 + 2
Rs. 4,890
It was further contended that the scale of pay in the Vth Pay Commission and the corresponding Pay Band and Grade Pay in the VIth Pay Commission, along with the details of Pay and Revised Pay of the applicant, are as under:
Vth CPC
VIth CPC
Rs.3,930 in scale Rs.2,650- 4,000 w.e.f. 01/08/2005
Rs.7,310 + Grade Pay Rs.1,800 w.e.f. 01/01/2006
Rs.4,000 in scale Rs.2,650-
4,000 w.e.f. 01/08/2006
Rs.7,590 + Grade Pay
Rs.1,800 w.e.f 01/07/2006
Rs.4,110 in scale Rs.3,050- 4,590 w.e.f. 10/10/2006
Rs.7,880 + Grade Pay Rs.1,900 w.e.f. 10/10/2006
Accordingly, it was contended that the revised pay and pension of the applicant should have been calculated as Rs. 7,880/- and plus GP of Rs. 1,900 totalling to Rs. 9,780/-. Accordingly, the revised pension at 50% was Rs. 4,890/-.
It was further pointed out by the learned SCGSC that since the applicant has retired prior to 01.01.2016, the revised pension/family pension with effect from 01.01.2016 was liable to be determined by multiplying the pension/family pension fixed at the implementation of the VIth CPC with a multiplication factor of 2.57. So arrived at, rounded off to the next higher rupee was Rs. 12,568/- with effect from 01.01.2016. By virtue of Annexure R1 RBE No.49/2017 revised pension/family pension with effect from 01.01.2016 in respect of all pensioners who had retired prior to 01.01.2016 were revised notionally by fixing their pay in the pay matrix rendered by the VIIth CPC in the level corresponding to Pay scale/Pay Band and Grade Pay at which they had retired.
The contention of the learned SCGSC was that due to an inadvertent error the notional pay of the applicant was fixed as per the concordance table No. 8 at scale of 5,200-20,200 and Grade Pay of Rs.1,800. Accordingly, the pension was fixed as 12,800 with effect from 01.01.2016 as per Annexure A2. Consequently, pension was paid at Rs. 12,800 from 01.01.2016. On verification later, pursuant to the representation of the official, it was noted that in Annexure A2, the Grade Pay was shown as Rs.1,800/- instead of Rs.1,900/-. Since at the time of retirement, the pay of the applicant was Rs. 4,110/- in the pay scale of 3,050-4,590, the corresponding figure in the concordance table was taken as table No.11 in Annexure R3 instead of table No.8 in Annexure R2.
The crux of the contention of the learned SCGSC was that in Annexure A1 at column No. 9 in the VIth Pay Commission scale, pay and Grade Pay shown as Rs. 7,980/- and corresponding grade pay of Rs. 1,800/- were both mistakes. Pay ought to have been Rs. 7,880/- and the Grade Pay ought to have been Rs. 1,900/- instead of 1,800/-. It was contended by the learned SCGSC that this deduction in the Grade Pay by Rs. 100/- and corresponding increase by Rs. 100/- in the pay @ Rs. 7,980/- instead of Rs. 7,880/- went unnoticed since the total of both the figures were 9,780/-. Consequently, since the final figure tallied, this inadvertent omission in typing the pay as Rs. 7,980/- instead of 7,880/-thereby making a difference of Rs. 100/-, which stood balanced by the less Grade Pay of Rs. 1,800/- instead of Rs. 1,900/- went unnoticed.
It seems that with reference to the concordance table the contention of the learned SCGSC appears to be justified. It is true that there are two mistakes that had occurred in Annexure A1, in the pay as well as in the Grade Pay. Thus, a difference of Rs. 100/- arose. To that extent, the applicant was justified in contending that his Grade Pay was showed wrongly. The grievance of the applicant was that his claim that Grade Pay was fixed at Rs. 1,800/- instead of Rs. 1,900/- has been accepted, but a further reduction of his pay by Rs. 100/- was made thereby nullifying his claim and recovery of a sum of Rs. 9,320/- was effected.
It is true that mistake seems to have occurred though inadvertently or due to laches. The specific contention of the learned Counsel for the applicant in this regard was based on Annexure A5 which was the Rule 90 of the Railway Service Pension Rules, 1993. Clause (1) of 90, which reads as follows:-
“Subject to the provisions of rules 8 and 9 pension once sanctioned after final assessment shall not be revised to the disadvantage of the railway servant unless such revision becomes necessary on account of detection of a clerical error subsequently. Provided that no revision of pension to the disadvantage of the pensioner shall be ordered by the Head of Office without the concurrence of the Railway Board if the clerical error is detected after a period of two years from the date of sanction of pension.”
It was contended by the learned counsel for the applicant that if a clerical mistake is detected after a period of two years from the date of sanction of pension it is barred under Rule 90.
This was answered by the learned SCGSC contending that the mistake arose only by Annexure A2 dated 18.12.2018 and was rectified by Annexure A3 which was issued only on 05.07.2019. The O.A was filed on 25.09.2020. Hence, there was no delay. Since Annexure A3 was issued within 2 years from Annexure A2, Rule 90 has no application, it was contended.
It is pertinent to note that the crux of the case of the respondents is that the mistake occurred in Annexure A1 dated 03.02.2009. Evidently, it was found out only when the difference in the Grade Pay was raised by the applicant. Though the learned SCGSC vehemently contended that the mistake in Annexure A2 PPO dated 28.11.2017 has been rectified by Annexure A3 PPO issued on 05.07.2019 and the rectification/correction of a clerical error has been made within two years and consequently Annexure A5 bar not apply, I am not attracted by this contention. Though rectification was carried out dated 05.07.2019 the mistake in Annexure A2, essentially relates back to a mistake that occurred in Annexure A1 dated 03.03.2009. It may be true that substantially there is no difference in the amount and the difference in basic pay got projected at the time of 2016 pay revision, the mistake originated from 03.03.2009. The mistake could not be rectified without correcting Annexure A1. Hence, any correction made by issuing the revised PPO has to relate back to the date of original mistake that occurred in Annexure A1. Necessarily, it has to be reckoned as a correction of a mistake that occurred prior to two years. Having considered this, the rectification to the prejudice to the applicant is hit by Rule 90 of Annexure A5. To that extent I am inclined to accept the contention of the learned Counsel for the applicant.
Hence, the reduction in pension has to be declared as one in breach of Rule 90 of Annexure A5. Admittedly, the applicant is entitled to get the Grade Pay corrected at Rs. 1,900/-. Annexure A3 to the extent of reducing the pension cannot be sustained by virtue of Rule 90. There is a reduction of pension by Annexure A3. This leads to an incongruous situation. The basic mistake that occurred in Annexure A1 by showing Rs. 7,980/- as the Vth CPC pay instead of Rs. 7,880/- will have to be restored, though admittedly that was a mistake that has crept in. Since no other mode of moulding the relief balancing both interests and the pension has to be protected, that last pay mentioned in Annexure A1 has to remain. Accordingly, OA has to be allowed.
The O.A is allowed. Amount if any recovered shall be returned within two months from the date of receipt of a copy of this order. Fresh calculation shall be made by retaining the Grade Pay at Rs. 1,900/-instead of Rs. 1,800/- and last pay in VIth CPC restored as Rs. 7,980/- as shown in Annexure A1. Pension has to be recalculated without reducing the pension earlier drawn. Issue fresh PPO within two months from the date of receipt of a copy of this order. No order as to cost.