K. Ragavendran And Ors vs Union Of India And Ors

MA for joining the applicants together and filing a single OA is allowed. Registry is directed to number the OA.

The above OA is filed seeking the following relief:-

"to set aside Memo No.C3/N/Notional Increment dated 16.11.2018, Memo No.C3/N/Notional Increment dated 27.12.2018, Memo No.C3/N/Notional Increment dated 16.11.2018, Memo No.C10/Pen Genl/Dlgs dated 23.10.2018, Memo No.C PEN/DLGS/2018 dated 10.12.2018, Memo No.C3/N/Notional Increment dated 27.12.2018 and Memo No.C PEN/DLGS/2018 passed by the 2nd, 3rd, 4th respondents respectively and consequently direct the respondents to re-fix their pension and other terminal benefits after granting them their Annual increments which falls on 01st July of the year in which they retired from Departmental service including arrears of pension and interest on arrears at the rate of 12% per annum till the date of actual payment and pass such other orders as are necessary to meet the ends of justice."

This Tribunal had considered the very same question in a batch of cases in OA 1710/2018 to OA 1714/2018 on 06.3.2019. However, we heard the applicant and respondents.

Mr.SU.Srinivasan takes notice for the respondents. Learned counsel for the respondents would submit that a similar issue has been dealt with in various OAs and this Tribunal dismissed the same following the ratio of the decision of the Hon'ble Supreme Court in Chief General Manager, Telecom, BSNL & Another v. K.V.George reported in (2008) 14 SCC 699.

According to the applicants, they retired from service on 30th June of their retirement year on attaining superannuation. Since they will be completing an year of service on 1st of July they are entitled to one more increment and it has to be counted for pensionary benefits.

The counsel for the applicants mainly rely on a decision of the Hon'ble Madras High Court in "Ayyanperumal v. Union of India (W.P. 15732/2017). The standing counsel for the respondent appeared and would content that the applicants had continued till 30.6.18 only on the basis of FR 56 and the Hon'ble Supreme Court in Chief General Manager v. U.V.George & Others (2008) 14 SCC 699 had held that a person is considered as retired on his attaining 60 years and they are permitted to continue till 30.6.18 only for the purpose of pay and allowances only. He also submits that R-10 of CCS (Pension) Rules does not permit to take into consideration emoluments which fell due after his retirement.

He also invited our attention to the Hon'ble Apex Court decision in Achhaibar Maurya v. State of U.P. & Others (2008) 2 SCC 639 wherein it was held as follows:-

"10. A benefit of getting an extended period of service must be conferred by a statute. The legislature is entitled to fix a cut-off date. A cut-off date fixed by a statute may not be struck down unless it is held to be arbitrary. What would, therefore, be an employees last working date would depend on the wordings of the Rules. It may seem unfortunate as some people may miss the extended period of service by a day, but therefor a valid provision may not be held to be invalid on the touchstone of Articles 14 or 16 of the Constitution of India. A statute cannot be declared unconstitutional for conferring benefit to a section of the people."

The Standing Counsel also invited our attention to the decisions of the Hon'ble Madras High Court in A.V.Thiyagarajan vs. The Secretary to Government (W.P.No.20732/2012 dated 27.11.2012) and Union of India v. R.Sundara Rajan (WP 28433/05) and the decision of Hon'ble Karnataka High Court in Union of India & 3 Others v. YNR Rao (WP 18186/2003) where it was held that

"5. But for the provisions of FR 56, which provides that a Government Servant shall retire from service on the afternoon of last date of the month in which he had attained the age of 58 years, the respondent, who was born on 9.3.1937 would have retired on 8.3.1995. The provision for retirement from service on the afternoon of the last date of the month in which the Government Servant attains the age of retirement instead of on the actual completion of the age of retirement in FR 56 was introduced in the year 1973-74 for accounting and administrative convenience. What is significant is the proviso to clause (a) of FR 56 which provides that an employee whose date of birth is first of a month, shall retire from service on the afternoon of the last date of the preceding month on attaining the age of 58 years. Therefore, if the date of birth of a government servant is 1.4.1937 he would retire from service not on 30.4.1995, but on 31.3.1995. If a person born on 1.4.1937 shall retire on 31.3.1995, it would be illogical to say a person born on 9.3.1937 would retire with effect from 1.4.1995. That would be the effect, if the decision of the Full Bench of the CAT, Mumbai, is to be accepted. Therefore, a government servant retiring on the afternoon of 31.3.1995 retires on 31.3.1995 and not from 1.4.1995. We hold that the decision of the Full Bench (Mumbai) of the CAT that a government servant retiring on the afternoon of 31st March is to be treated as retiring with effect from the first day of April, that is same as retiring on the forenoon of first of April, is not good law."

We had anxiously perused the pleadings and heard the submissions made from both sides. The Hon'ble Supreme Court in Chief General Manager, Telecom, BSNL & Another v. K.V.George reported in (2008) 14 SCC 699 has clearly laid down what will be the actual date of retirement of an employee under the Central Government as per FR 56. We are bound to follow the decision of Apex Court as to the actual date of retirement and as to the nature of employment of the employee till the last date of the month. The Hon'ble Supreme Court held that "we are unable to countenance with the decision of the Tribunal and the High Court. As already noticed, they were retired w.e.f. 16.12.95 and 3.12.95 respectively but because of the provision under FR 56(a), they were allowed to retire on the last date of the month; the grace period of which was granted to them for the purpose of pay and allowances only. Legally they were retired on 16.12.95 and on 3.12.95 respectively and, therefore, by no stretch of imagination can it be held that their pensionary benefits can be reckoned from 1.1.96. The relationship of employer and employee was terminated in the afternoon of 16.12.95 and 3.12.95 respectively."

From the above, it can be seen that an employee legally retires on attaining superannuation (60 years) and as per the decision, the relationship of employer employee is terminated. They continue thereafter as a grace period given to the employee under FR 56. There is no provision to consider this grace period alongwith their service prior to their retirement.

Since the OA on hand is identical to the one in OA 1710/2018 to OA 1714/2018, following the same ratio, the present OA is also dismissed at the admission stage.