Mohar Singh vs Union Of India & Or

Tarlok Singh Chauhan, J

The. instant. petition. has. been. filed. for. grant. of following substantive reliefs:

"1. that the petitioner be considered for full pensionery benefits w.e.f. his retirement i.e. 1.4.1992.

that the respondents may kindly be ordered to grant the arrears of the pension with interest.

that the respondent may also be directed to grant the pensionary and consequential benefits."

The petitioner was appointed as. Sepoy­Constable in 4th Battalion, ITBP­Kullu, District Kullu, H.P. on 16.10.1969 and after serving upto 1.4.1992, he sought voluntarily retirement. Now, the grievance of the petitioner is that despite having rendered 22 years of service, he is not being paid full pension.

The respondents have filed their reply, wherein it is averred that the pension and pensionery benefits of the petitioners were calculated and granted on 27 years of service after giving benefit/weightage of 5 years at the time of his retirement corresponding to the scale he was drawing and as such, pension was fixed at Rs.490/­ w.e.f. 1.4.1992.

4 While implementing 6th Central Pay Commission, pension of the petitioner was revised at Rs.3500/­ and later, on the basis of fitment table, the same was fixed at Rs.3850/­ in accordance with the instructions guidelines of the Department of Pension and Pensioners' Welfare.

It is further averred that after filing of this petition many petitions in different Tribunals and Courts, the Department of Pension and Pensioners' Welfare had issued office memorandum dated 6.4.2016. As per para 6 thereof, it has 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. The Central Pension Accounting Officer has already taken necessary action to revise the pension of the petitioner after issuance of office memorandum dated 6.4.2016.

It is vehemently argued by Mr. Y. P. S. Dhaulta, Advocate, that the respondents cannot arbitrarily fix cut off date for grant of pension and would place reliance on the judgment rendered by Delhi High Court in S.A. Khan & anr. vs. Union of India & ors., 2015 LawSuit (Del) 2119.

I have considered the said submission and find no merit in the same for the reason that the judgment passed by Delhi High Court in S.C. Khan's case (supra) is based on earlier judgment rendered by that Court in WP(C) No. 1535/2012, titled as Union of India & anr. vs. Central Govt. SAG & ors., which in turn was relied upon by the Division Bench of Punjab & Haryana High Court in WP (C) No. 19641/2009, titled as R.K. Aggarwal & ors. vs. State of Haryana & ors., as would be evident from paras 7 to 9 of the judgment, which reads as under:­

"7. To put rest his argument the learned counsel for the petitioner has drawn our attention to a decision dated April 29, 2013 of a Division Bench of this Court in W.P.(C) No.1535/2012 Union of India & Anr. vs Central Govt. SAG & Ors., authored by one of us i.e. Pradeep Nandrajog, J., wherein the issue for consideration was the applicability of paragraph 9 of the Office Memorandum dated January 28, 2013 from September 24, 2012 onwards, thereby denying the arrears of pension to be paid to pensioners with effect from January 01, 2006.

While disposing of the said writ petition the Division Bench expressed its complete agreement with a decision dated December 21, 2012 passed by a Division Bench of the Punjab & Haryana High Court in WP (C) No. 19641/2009 R.K.Aggarwal & Ors. Vs State of Haryana & Ors. Learned counsel relied upon paragraphs 21 to 26 of the said judgment, wherein the Division Bench had reasoned as under:

"21. On the recommendations made by VI CPC, which stood validly accepted by the Cabinet, it was argued before the Tribunal that principle for determining the pension has been completely altered under the garb of clarification. It was argued that on the basis of the aforesaid resolution/modified parity revised pension of the pre­2006 pensioners shall not be less than 50% of the minimum of the pay band + grade pay, corresponding to the pre­revised pay scale from which the pensioner had retired.

The Tribunal has accepted this contention and because of this reason, it is held that subsequent OMs dated 03.10.2008 and 14.10.2008 purportedly issued to clarify para 4.2 of OM dated 01.09.2008 were contrary to the plain meaning of the said para and whereby the criteria and principle for determination of the pension had been completely changed that too when these two subsequent OMs dated 03.10.2008 and 14.10.2008 were issued by the lower authorities having no power to issue such clarification.

23 After considering the arguments of learned counsels for all the parties, we are of the opinion that it is not even necessary to go into the various nuances and nitty grittys, which are insisted by learned counsels for the petitioners based on D.S. Nakara line of cases and N. Subbarayudu and others and S.R. Dhingra and others (supra), wherein ratio of D.S. Nakara is explained. We proceed on the basis that fixation of cut off date by the government was in order and to this extent we agree with the reasoning given by the Tribunal where similar arguments, as advanced by the petitioners before us, were rejected. The issue can be resolved on the interpretation of OM dated 29.08.2008 itself. It is not in dispute that vide resolution dated 29.08.2008, recommendations of the 6th Central Pay Commission were accepted by the government and the pension was also to be fixed on the basis of formula contained therein. We have already reproduced the recommendations of the 6th Central Pay Commission, as contained in para 5.1.47, which was accepted by the government vide Item No. 12 of resolution dated 29.08.2008 with certain modifications. Based on this resolution, OM dated 01.09.2008 was issued. We have also reproduced para 4.2 thereof. This states in unequivocal terms that "revised pension in no case shall be lower than 50% of the minimum of pay in the pay band plus grade pay corresponding to the pre­revised pay scale­­­­­­". The clear purport and meaning of the aforesaid provision is that those who retired before 01.01.2006 as well were ensured that their revised pension after enforcing recommendations of the 6th Central Pay Commission, shall not be less than 50% of the minimum of the pay band plus grade pay corresponding to the pre­revised pay scale from which the pensioners had retired. However, notwithstanding the same and without any provocation, the junior functionaries in the Department of Pension nurtured a doubt "though there was none" and note was prepared on that basis, which led to issuance of OMs dated 03.10.2008 and 14.10.2008. The effect of these two OMs was to make revision in the pension of pre­2006 retirees by giving them less than 50% of the sum of minimum of the pay in the pay band. To demonstrate this, Mr. H.L. Tikku, learned senior counsel appearing in some of these cases drew our attention to the following chart:­

Min of Prerevised Scale

Pay in the pay band

Grade pay

Revised basic pay (2+3)

Pension 50% of (2+3)

S-24 (14300)

37400

8700

46100

23050

S-25 (15100)

39690

8700

48390

24195

S-26 (16400)

39690

8900

48590

24295

S-27(16400)

39690

8900

48590

24295

S-28 (14300)

37400

10000

47400

23700

S-29 (18400)

44700

10000

54700

27350

The first 4 columns of the above table have been extracted from the pay fixation annexed with MOF OM of 30th August, 2008 (referred to in para 4.5 (iii) above). Revised pension of S 29 works out to Rs.27,350 which has been reduced to Rs.23,700 as per DOP OM of 03.10.2008 (para 4.8 (B) below).

As per the impugned OM dated 14.10.2008 in the case of S­24 officers the corresponding pay in the Pay Band against Rs.14,300/­ is shown as Rs.37,400/­. In addition, Grade Pay of Rs.8700/­ was given totaling Rs.46,100/­. Similarly, revisions concerning all the other pay scales were accepted by the aforementioned OM dated 14th October, 2008. The illegality which has been perpetrated in the present matter is apparent from the fact that whereas an officer who was in the pre­revised scale S­24 and receiving a pay of Rs.14,300/­ would now receive Rs.37,400/­ plus grade pay of Rs.8700/­ and his full pension would accordingly be fixed at Rs.23,050/­ (i.e. 50% of 37,400/­ pay plus grade pay Rs.8700/­) pursuant to the implementation of VI CPC recommendations after 01.01.2006, whereas a person retiring before 01.01.2006, who was drawing a pay of Rs.18,400/­ or even Rs.22,400/­ (maximum of scale) in the pre­ revised S­29 scale will now be getting pension as only 23,700/­ (i.e. 50% of pay of Rs.37,400/­ plus grade pay of Rs.10,000/­).

This has arisen because of resolution dated 29.08.2008 and has resulted because of deletion of certain words in para 4.2 of the OM dated 01.09.2008 or 03.10.2008. This aspect is beautifully demonstrated by the Tribunal in its Full Bench judgment in the following manner with which we are entirely agree:

"25. In order to decide the matter in controversy, at this stage, it will be useful to extract the relevant portions of para 5.1.47 of the VI CPC recommendation, as accepted by the Resolution dated 29.08.2008, para 4.2 of the OM dated1.9.2008 and subsequent changes made in the garb of clarification dated 3.10.2008, which thus read:

Resolution NO.38/37/8­ P&PW (A) dated 29.08.2008­ Para 5.1.47 (page154­155)

Para 4.2 of OM DOP&PWOM No.38/37/8­ P&PW (A) dated 1.09.2008 (page 38 of OA)

OM DOP & PW OM No.38/37/8­ P&PW (A) dated 3.10.2008

The fixation as per above will be subject to the provision that the revised pension, in no case, shall be lower than 50% of the sum of the minimum of the pay in the pay band and the grade pay thereon corresponding to the pre revised pay scale from which the pensioner had retired.

The fixation as per above will be subject to the provision that the revised pension, in no case, shall be lower than 50% of the (sum of the) minimum of the pay in the pay band plus (and) the grade pay (thereon) corresponding to the pre revised pay scale from which the pensioner had retired.

The pension Calculated at 50% of the (sum of the ) minimum of the pay in the pay band (and the grade pay thereon corresponding to the prerevised pay scale) plus grade pay would be calculated (i) at the minimum of the pay in the band (irrespective of the pre­revised scale of pay plus) the grade pay corresponding to the prerevised pay scale.

For example, if a pensioner had retired in the pre­revised scale of pay of Rs.18400­22400, the corresponding pay band being Rs. 37400­ 67000 and the corresponding grade pay being Rs.10000 p.m., his minimum guaranteed pension would be 50% of Rs. 37400+ Rs.10000 (i.e.Rs.23700)

Strike out are deletions and bold letter addition.

Strike out are deletions and bold letters addition.

As can be seen from the relevant portion of the resolution dated 29.8.2008 based upon the recommendations made by the VI CPC in paragraph 5.1.47, it is clear that the revised pension of the pre­2006 retirees should not be less than 50% of the sum of the minimum of the pay in the Pay Band and the grade pay thereon corresponding to the pre­revised pay scale held by the pensioner at the time of retirement. However, as per the OM dated 3.10.2008 revised pension at 50% of the sum of the minimum of the pay in the pay band and the grade pay thereon, corresponding to pre­revised scale from which the pensioner had retired has been given a go­by by deleting the words 'sum of the' 'and grade pay thereon corresponding to the pre­revised pay scale' and adding 'irrespective of the pre­revised scale of pay plus' implying that the revised pension is to be fixed at 50% of the minimum of the pay, which has substantially changed the modified parity/formula adopted by the Central Government pursuant to the recommendations made by the VI CPC and has thus caused great prejudice to the applicants. According to us, such a course was not available to the functionary of the Government in the garb of clarification thereby altering the recommendations given by the VI CPC, as accepted by the Central Government. According to us, deletion of the words 'sum of the' 'and grade pay thereon corresponding to the pre­ revised scale' 'and addition of the words 'irrespective of the pre­revised scale of pay plus', as introduced by the respondents in the garb of clarification vide OM dated 3.10.2008 amounts to carrying out amendment to the resolution dated 29.08.2008 based upon para 4.1.47 of the recommendations of the VI CPC as also the OM dated 1.9.2008 issued by the Central Government pursuant to the aforesaid resolution, which has been accepted by the Cabinet. Thus, such a course was not permissible for the functionary of the Government in the garb of clarification, that too, at their own level without referring the matter to the Cabinet."

It is for the aforesaid reasons, we remark that there is no need to go into the legal nuances. Simple solution is to give effect to the resolution dated 29.08.2008 whereby recommendations of the 6 th Central Pay Commission were accepted with certain modifications. We find force in the submission of learned counsel for the petitioners that subsequent OMs dated 03.10.2008 and 14.10.2008 were not in consonance with that resolution. Once we find that this resolution ensures that "the fixation of pension will be subject to the provision that the revised pension, in no case, shall be lower than 50% of the sum of the minimum of the pay in the pay band and the grade pay thereon corresponding to the pre­ revised pay scale from which the pensioner had retired", this would clearly mean that the pay of the retiree i.e. who retired before 01.01.2006 is to be brought corresponding to the revised pay scale as per 6th Central Pay Commission and then it has to be ensured that pension fixed is such that it is not lower than 50% of the minimum of the pay in the band and the grade pay thereon. As a result, all these petitions succeed and mandamus is issued to the respondents to refix the pension of the petitioners accordingly within a period of two months and pay the arrears of pension within two months. In case, the arrears are not paid within a period of two months, it will also carry interest @ 9% w.e.f. 01.03.2013. There shall, however, be no order as to cost."

In the above judgment while noting the judgment of the Division Bench of the Punjab and Haryana High Court in paragraph 22 of the said judgment it has been clearly held that „The Tribunal has accepted this contention and because of this reason, it is held that subsequent OM dated October 03, 2008, October 14, 2008 purportedly issued to clarify para 4.2 of OM dated September 01, 2008 were contrary to the plain meaning of the said para and whereby the criteria and principle for determination of the pension had been completely changed that to when these two subsequent OMs were issued by lower authorities having no power to issue such clarification'. The Division Bench of Punjab and Haryana High Court in the above judgment has already held that the OMs dated October 03, 2008 and October 14, 2008 are contrary to OM dated September 01, 2008 and were issued by a lower authority who could not have altered the original OM being September 01, 2008. Thus the normal corollary would be that the procedure laid down under para 4.2 of the OM dated September 01, 2008 shall remain in respect of pre­2006 retirees and the clarifications issued by OMs dated October 03, 2008, October 14, 2008 and January 28, 2013 whereby the words „the pension of the pensioners who retired prior to 2006 will be reduced pro­rata wherein the pensioner who has less than the maximum required service for full pension as per Rule 49 of CCS (Pension) Rules 1972' needs to be quashed."

This judgment in turn was challenged before the Hon'ble Supreme Court in SLP (C) No. 36148/2013 and was dismissed vide order dated 17.3.2015 and it is only thereafter that office memorandum dated 6.4.2016 (supra) has been issued.

9 For the sake of convenience, office memorandum is reproduced in its entirety and reads as under:­

"No. 38/37/08­P&PW(A)

Government of India

Ministry of Personnel, PG & Pensions

Department of Pension & Pensioners' Welfare

3rd Floor, Lok Nayak Bhawan

Khan Market, New Delhi­110 003

Dated the 06th April, 2016

Office Memorandum

Sub: Revision of pension of pre­2006 pensioners - delinking of revised pension from qualifying service of 33 years.

The undersigned is directed to say that as per Para 4.2 of this Department 's OM of even number dated 1.9.2008 relating to revision or pension of pre­ 2006 pensioners w.e.f. 1.1.2006 the revised pension w.e.f. 1.1.2006 in no case shall be lower than 50% of the sum of minimum of pay in the pay band and the grade pay thereon corresponding to the pre­revised pay scale from which the pensioners had retired. A clarification was issued vide DoP&PW OM of even number dated 3.10.2008 that the pension calculated at 50% of the minimum of pay in the pay band plus grade pay would be calculated at the minimum of the pay band (irrespective of the pre­revised scale of the pay) plus the grad pay corresponding to the pre­revised pay scale.

Several petitions were filed in the Central Administrative Tribunal, Principal Bench, New Delhi inter alia claiming that the revised pension of the pre­20006 pensioners should not be less than 50% of the minimum of the pay band + grade pay, corresponding to the pre­revised pay scale from which pensioners had retired as arrived at with reference to the fitment tables annexed to Ministry of Finance Department of Expenditure OM No. 1/1/2008­IC dated 30 th August 2008. Hon'ble CAT Principal Bench,New Delhi vide its common order dated 1.11.2011 in OA No. 655/2010 and three other connected OAs directed to re fix the pension of the all pre­2006 retirees w.e.f. 1.1.2006 based on the Resolution dated 29.8.2008 of the Department of Pension & Pensioner's welfare and in the light of the observation of Hon'ble CAT in that order.

Orders were issued vide this Department's OM of even number dated 28.1.2013 for setting up of pension of pre­2006 pensioners w.e.f. 24.9.2012 to 50% of the minimum of pay in the pay band and grade pay corresponding to pre­revised pay scale from which the pensioner retired. Para 5 of this OM provides that in case the consolidated pension/family pension calculated as per para 4.1 of OM NO. 38/37/08­P&PW (A) dated 1.9.2008 is higher than the pension family pension calculated in the manner indicated in the OM dated 28.1.2013 the same (higher consolidated pension family pension) will continue to be treated as basic pension family/ pension.

Subsequently, in compliance of the order dated 1.1.12013 of the Hon'ble CAT Principal Bench OA No. 655/2010 order dated 29.4.2013 of the Hon'ble High Court of Delhi in WP (C) No. 1535/2012 and order dated 17.3.2015 of the Hon'ble Supreme Court in SLP (c)No. 36148/2013 order were issued vide this Department's Om of even number dated 30.7.2015 that the pension/family pension of all pre­2006 pensioners/ family pensioners may be revised in accordance with this Department's OM No. 38/36/08 ­P&PW(A) dated 28.1.2013 with effect from1.1.2006 instead of 24.9.2012.

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 Shir. M.O. Inasu, a pre ­2006 pensioners, Hon'ble CAT, Ernakulam 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 field by the Department of Revenue in the Hon'ble High Court or Kerala and in the Hon'ble Supreme Court have also been dismissed. Similar orders have been passed by the Hon'ble CAT/High Court in several other cases also.

The matter has been examined in consultation with Ministry of Finance (Department of Expenditure). It has now been decided that the revised consolidated pension of pre­2006 pensioners shall not be lower than 50% of the minimum of the pay in the pay band and the grad pay (wherever applicable) corresponding to the pre revised pay scale as per fitment table without pro­rata 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 or revised pension would be payable with effect from 1.1.2006.

Ministry of Agriculture etc, are requested to bring the contents of these orders to the notice of Controller of Accounts/Pay and Accounts Officer and Attached and Subordinate Offices under them for revision the pension of all those pre ­2006 pensioners in who had rendered less than 33 years of qualifying service at the time of retirement in the manner as indicated on top priority. Revised Payment Orders in all these cases may be also issued immediately.

All pension disbursing offices/banks are also advised to prominently display these orders on their notice boards for the benefits of pensioners.

This issues with the approval of Ministry of Finance Department of Expenditure vide ID Note No. 2 (9) EV/2015, dated 15.3.2016.

Hindi version will follow."

Sd/-

Seema Gupta

Deputy Secretary to the Government of India

To

1.All Ministries/ Departments of Government of India.(as per standard mailing list.)

All SCOVA Members

All identified Pensioners Association.

Copy to (I) NIC cell for uploading on the website of the Department.

ii) AD(OL), DoPPW for Hindi Version"

Admittedly, the petitioner has rendered only 22 years of service as against the qualifying service of 33 years for availing of full pension in terms of the aforesaid circular. Since the petitioner does not possess the requisite qualifying service, therefore, he is not eligible for full pension.

Accordingly, there is no merit in the instant petition and the same is dismissed. However, taking into account the fact that the case of the petitioner is pending consideration and has already been taken up with the Central Pension Accounting Officer for revision of pension in terms of the office memorandum dated 6.4.2016, the respondents are directed to take this action to its logical end within a period of three months from today and pay due and admissible amount to the petitioner along with interest @ 9% per annum from the due date. Pending application(s), if any, also stands disposed of.

For compliance, to come up on 29.7.2021.