Shaji Abraham And Ors vs Union Of India

This OA has been filed by the applicants seeking the following reliefs:-

"(i) direct the Respondent to re-fix the pension of the Applicants w.e.f. 01.01.2006 by extending the principle contained in OM No.38/37/08-P&PW(A) dated 2.9.2008 and in OM No.389/37/08=P&PW(A) dated 10-12-2009, vide which pension was granted to the pensioners retiring on or after 1.1.2006 after completion of ten years of service;

(ii) quash and set aside para 5 of O.M. No.38/37/08-P&PW(A) dated 28.01.2013 issued by the Department of Pension & Pensioner"s Welfare and direct the respondent to fix the pension of the applicants in accordance with the recommendations of the VI CPC and accepted by the Government vide its resolution dated 29-08-2008 that the pension in no case shall be lower than fifty percent 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 applicants had retired;

(iii) direct the respondent to fix the revised pension of the applicants by ensuring that the pension of the applicant in no case is less than the amount indicated in column 7 of the table at par 24 of the application (i.e. in accordance with para 4.2 of OM dated 1-9-2008);

(iv) allow the cost of this application.

(v) pass any further orders, directions as deemed just and proper to meet the end of justice."

Brief facts of the case are that the applicants were Central Govt. employees working in various posts in different Departments and they initially joined the Telecom Regulatory Authority of India (TRAI) on deputation basis and they were offered permanently absorption in TRAI cadre in 2003 and they accepted the said offer of absorption and consequently, they tendered their resignation from their posts in Central Government on different dates prior to 1.1.2006 and joined TRAI and as such the applicants are pre-2006 retirees and are receiving pension since the date of their retirement from Central Government service.

2.1 The applicants further stated that a Government servant who is permitted to be absorbed in a statutory body like TRAI, and having minimum 10 years of qualifying service is eligible to receive retirement benefits, as per Rule 37 of CCS(Pension) Rules and the quantum of pension at the time of retirement from service is computed for all employees based on Rule 49 of these Rules. As per the provisions of Rule 49 existing before 1st January 2006, in case the Government servant had rendered service for not less than 33 years, the amount of pension shall calculated at fifty per cent of the average emoluments for the last 10 months. However, in case the Government servant had retired after completing the qualifying service of 10 years but before completing 33 years of qualifying service, the amount of pension shall be proportionate to the qualifying service, i.e. the pension shall be proportionately reduced by n/33, where „n" is the qualifying service. Accordingly, the applicants were granted pension, after reducing it proportionately to the length of qualifying service.

2.2 The grievance of the applicants is the Government issued OM dated 2.9.2008 implementing the decisions of the Government regarding pension and other retirement benefits to employees retiring on or before 1.1.2006 and as per the said OM, linkage of full pension with 33 years of qualifying service has been dispensed with. Once a Government servant has rendered the minimum qualifying service of twenty years or 10 years in accordance with Rule 49(2) of the CCS (Pension) Rules, 1972, pension shall be paid at 50% of the emolument or average emoluments received during the last 10 months, whichever is more beneficial to him and the said OM was initially implemented prospectively with effect from 2.9.2008 as per the recommendations of VIth CPC, as accepted by the Government vide Resolution dated 29.8.2008. Subsequently, clarification/modification was issued vide OM dated 3.10.2008 and in pursuance of said OM of 3.10.2008, another OM was issued by the Government dated 14.10.2008 vide which table containing the revised minimum pension of pre-2006 pensioners was specified. Through the said OMs of 3.10.2008 and 14.10.2008, the minimum pension was altered by further reducing the guaranteed minimum through proportionate reduction based on qualifying service. Accordingly, the pension of the applicants was revised with effect from 1.1.2006 in terms of aforesaid OMs of 1.9.2008, 3.10.2008 and 14.10.2008. The respondent vide OM dated 10.12.2009 decided to dispense with the linkage of full pension with 33 years of qualifying service in respect of government servants retired on or after 1.1.2006. Accordingly, the revised provisions for calculation of pension in para 5.2 and 5.3 of the OM dated.08 came into effect from 1.1.2006 and para 5.4 stand modified to that extent.

2.3 Being aggrieved by the aforesaid decisions of the Government, certain pre-2006 retirees had filed OAs no.655/2010, 3079/2009, 306/2010 and 507/2010 and the Full Bench of this Tribunal vide Order dated 1.11.2011, disposed of the same by observing as follows:-

"29. From the above extracted portion it is clear that the principle of modified parity, as recommended by the V CPC and accepted by the VI CPC and accepted by the Central Government provides that revised pension in no case shall be lower than 50% of the sum of the minimum of the pay in the pay band and grade pay corresponding to revised pay scale from which the pensioner had retried. According to us, as already stated above, in the garb of clarification, respondents interpreted minimum of pay in the pay band as minimum of the pay band. This interpretation is apparently erroneous, for the reasons:

a) if the interpretation of the Government is accepted it would mean that pre-2006 retirees in S-29 grade retired in December, 2005 will get his pension fixed at Rs.23700/- and anther officer who retired in January 2006 at the minimum of the pay will get his pension fixed at Rs.27350/-. This hits the very principle of the modified parity, which was never intended by the Pay Commission or by the Central Government;

b) The Central Government improved upon many pay scales recommended by the VI CPC. The pay scale in S-29 category was improved from Rs.39200-67000/- plus Grade Pay of Rs.9,000/- with minimum pay of Rs.43280/- to Rs.37,400-67000/- with grade pay of Rs.10,000/- with minimum pay of Rs.44,700/- (page 142 of the paper-book). If the interpretation of the Department of Pension is accepted, this will result in reduction of pension by Rs.4,00/- per month. The Central Government did not intend to reduce the pension of pre-2006 retirees while improving the pay scale of S-29 grade;

c) If the erroneous interpretation of the Department of Pension is accepted, it would mean that a Director level officer retiring after putting in merely 2 years of service in their pay band (S-24) would draw more pension than a S-29 grade officer retiring before 1.1.2006 and that no S-29 grade officer, whether existing or holding post in future will be fixed at minimum of the pay band, i.e., Rs.37,400/-. Therefore, fixation of pay at Rs.37,400/- by terming it as minimum of the pay in the pay band is erroneous and ill conceived; and

d) That even the Minister of State for Finance and Minister of State (PP) taking note of the resultant injustice done to the pre-11.2006 pensioners (pages 169-170) had sent formal proposal to the Department of Expenditure seeking rectification but the said proposal was turned down by the officer of the Department of Expenditure on the ground of financial implications. Once the Central Government has accepted the principle of modified parity, the benefit cannot be denied on the ground of financial constraints and cannot be said to be a valid reason.

In view of what has been stated above, we are of the view that the clarificatiory OM dated 3.10.2008 and further OM dated 14.10.2008 (which is also based upon clarificatiory OM dated 3.10.2008) and OM dated 11.02.2009, whereby representation was rejected by common order, are required to be quashed and set aside, which we accordingly do. Respondents are directed to re-fix the pension of all pre-2006 retirees w.e.f. 1.1.2006, based on the resolution dated 29.08.2008 and in the light of our observations made above. Let the respondents re-fix the pension and pay the arrears thereof within a period of 3 months from the date of receipt of a copy of this order. OAs are allowed in the aforesaid terms, with no order as to interest and costs."

2.4 However, the respondent on 28.1.2013, issued another OM relating to revised instructions on revision of pension of pre-2006 pensioners stating that the revised pension will be stepped up 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, as arrived at with reference to the fitment tables annexed to the Ministry of Finance OM dated 30.8.2008 and that such pension shall in no case be less than Rs.3500. As such through this OM the Government reintroduced the provision that this guaranteed minimum pension, as recommended by the VI CPC and accepted by the Government vide Resolution dated 29.8.2008 will be further reduced proportionately to the qualifying service while the pension has not rendered the maximum qualifying service of 33 years.

2.5 Against the aforesaid Order of Full Bench of this Tribunal, the respondent preferred Writ Petitions (Writ Petition (Civil) Nos.1535/2012, 2348/2012, 2349/2012 and 2350/2012) and the Hon"ble Delhi High Court dismissed the said Writ Petitions by upholding the Order of the Full Bench of this Tribunal vide Order dated 29.4.2013. Thereafter the respondent has also filed SLP (Civil) No.23055/2013 before the Hon"ble Supreme Court and the same was also dismissed by the Apex Court vide its Order dated 29.7.2013.

2.6 In spite of the above settled position in the matter of grant of pension to the pre-2006, the respondents continued to pay pension on the basis of OM which stands interfered with by the Hon"ble Courts. In such a situation, the applicants made repeated representations to the authorities for revision of their pension in accordance with the aforesaid decision of the Hon"ble Courts but to no avail.

2.7 Being aggrieved by non-grant of proper pension, the applicants have left with no remedy except to approach this Tribunal for redressal of their grievance.

Pursuant to notice issued to the respondent, he has filed reply in which it is stated that in the OA 655/2010 decided on 1.11.2011 by this Tribunal, the applicants who are pre-2006 retirees, claimed pension at par with post-2006 retirees. The applicants also raised the grievance that their notional pay fixation and consequent pension should not be lower 50% of the sum of the minimum in the pay in the pay band and the grade pay thereon corresponding to scale of pay from which they had retired and the clarification issued vide OM dated 3.10.2008 were contrary to the Resolution dated 29.8.2008 and OM dated 1.9.2008 in regard to para 4.2

3.1 They further stated that vide Order dated 1.11.2011 in the OA 655/2010 relied upon by the applicants, this Tribunal have inter alia held that the challenge made by the applicants based upon the judgment of Hon"ble Supreme Court in D.S. Nakara and others vs. Union of India, (1983) 1 SCC 305 that pre-2006 retirees should be extended the same pensionary benefits as that of post-2006 retirees cannot be accepted. The this Tribunal in para 9 of the judgment also rejected the prayer for grant of full pension on completion of 20 years of qualifying service at par with post- 2006 retirees and observed as follows:-

"9. Yet for another reason, pre-1.1.2006 and post-2006 retirees cannot be extended the same pensionary benefits inasmuch as the respondents on the basis of the recommendations of the VI CPC have issued two different Schemes for pre-2006 and post-2006 retirees. As regards, post-2006 retirees respondents have issued OM dated 2.9.2008 (Annexure R-1) as to how the pension has to be computed. As can be seen from this scheme, emoluments have to be computed on the basis of the revised pay structure and further as can be seen from paras 5.2 and 5.3 of the said OM qualifying service for the purpose of pension has been reckoned as 20 years as against 33 years, which was prevalent in respect of the employees who retired before 1.1.2006 and also that emoluments for the purpose of pensionary benefits have to be determined on the basis of 10 months average emoluments or emoluments last drawn by the employee before his retirement, whichever is more beneficial. Applicants have not challenged the validity of the OM dated 2.9.2008. As such, on these grounds pre-2006 retirees cannot claim benefit at par with post-2006 retirees, who are governed by the separate set of Scheme."

3.2 They further stated that while dismissing the Writ Petition No.1535/2012 filed by the respondent against the Order of this Tribunal dated 1.11.2011 in OA No.655/2010, the Hon"ble Delhi High Court in its Order dated 29.4.2013 noted the contents of OM dated 28.1.2013 issued by the respondent, according to which, the pension arrived at in accordance with Para 2 of the said OM would be reduced pro rata where the pensioner had less than the required service for full pension as per Rule 49 of the CCS (Pension) Rules, 1972 as applicable before 1.1.2006 and after noting the contents of the said OM of 28.1.2013, the Hon"ble Delhi High Court observed that "2. The only issue therefore which survives is, with respect of paragraph 9 of the Office Memorandum (dated 28.1.2013) aforenoted which makes it applicable with effect from September 24 2012, and thereby denying arrears to be paid to the pensioners with effect from January 01,2006." The Hon"ble High Court did not raise any objection to the contents of para 5 of OM dated 28.1.2013 according to which the minimum pension arrived at with reference to fitment table was to be further reduced pro rata based on the qualifying service of the pensioner at the time of retirement. The intent of the Hon"ble High Court order was to make the OM dated 28.1.2013 applicable w.e.f. 1.1.2006 instead of 24.9.2012. Thus, it is further submitted that directions of the Hon"ble High Court to make the OM dated 28.1.2013 effective from 1.1.2006 does not entail any change any provision for pro rata reduction of pension of pre-2006 pensioners in accordance with para 5 of that OM.

3.3 Lastly, the respondents submitted that instant OA deserves to be dismissed by this Tribunal.

In the rejoinder, the applicants reiterated the averments made in the OA and denied the contentions raised by the respondents in their counter affidavit.

During the course of hearing, counsel for the applicants submitted that the applicants have not prayed for full minimum pension but have prayed for the guaranteed minimum pension recommended by the VIth CPC as accepted by the Govt. vide Resolution dated 29.8.2008. The term „full minimum pension" is neither appearing in the recommendations of the VIth CPC nor in the said Resolution accepting the recommendation of the VIth CPC or in any instructions issued by the respondents and the term has been mischievously used by the respondent in denying the guaranteed minimum pension accepted by the Government to the pre-2006 pensioners, including the applicants.

5.1 Counsel for applicants further submitted that respondent in utter disregard to the issue settled by the Hon"ble Supreme Court and also on the basis of incorrect facts and incorrect reading and understanding of the legal provisions of the OM dated 28.1.2013 passed by the respondents. Counsel further submitted that SLPs in respect of three connected matters (OAs 3079/2009, 306/2010 and 507/2010) were also dismissed by the Hon"ble Supreme Court vide Order dated 17.3.2015 and the Government was allowed a time period of four months for implementation of the Order. Thus the Order of this Tribunal dated 1.11.2011 passed in OA nos.655/2010, 3079/2010, 306/2010 and 507/2010 attained finality on the issue raised by the applicants. Accordingly, the applicants are entitled, as a matter of right, to have their pension re-fixed in terms of Govt. of India Resolution dated 29.8.2008 issued in pursuance of VIth CPC recommendations without effecting any proportionate reduction based on qualifying service under the guise of subsequently issued OMs dated 3.10.2008, 14.10.2008 and 28.1.2013. Therefore, the applicants are entitled to all consequential benefits arising out of the decision with effect from 1.1.2006.

5.2 Counsel further submitted that judicial pronouncements by various Benches of this Tribunal, High Courts and Hon"ble Supreme Court, it has not only been established beyond doubt but also attained legal finality that the decision of delink 33 years of qualifying service for full pension is also applicable to pre-2006 pensioners in the matter of minimum pension as recommended by VIth CPC and accepted by the Government.

Counsel for the respondent submitted that respondent has issued the OM No.38/37/08-P&PW(A) dated 6.4.2016 on the subject of revision of pension of pre-2006 pensioners - delinking of revised pension from qualifying service of 33, which provides as under:-

"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 of 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 the minimum of pay in the pay band and the grade pay thereon corresponding to the pre-revised pay scale from which the pensioner 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 in the pay band (irrespective of the pre-revised scale of pay) plus the grade pay corresponding to the pre-revised pay scale.

Several petitions were filed in the Central Administrative Tribunal, Principal Bench, New Delhi inter alia claiming that the revised pension of the pre-2006 pensioners should not be less than 50% of the minimum of the pay band + grade pay, corresponding to the pre-revised pay scale from which pensioner had retired, as arrived at with reference to the fitment tables annexed to Ministry of Finance, Department of Expenditure OM No. 1/1/2008-IC dated 30th 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 all pre-2006 retirees w.e.f. 1.1.2006 based on the Resolution dated 29.8.2008 of the Department of Pension & Pensioners' Welfare and in the light of the observations of Hon'ble CAT in that order.

Orders were issued vide this Department's OM of even number dated 28.1.2013 for stepping up of pension of pre-2006 pensioners w.e.f. 24.9.2012 to 50% of the minimum of pay in the pay band and grade pay corresponding to pre-revised 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 O.M. No.38/37/08-P&PW (A) dated 1.9.2008 is higher than the pension/family pension calculated in the manner indicated in the O.M. 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 1.11.2011 of the Hon'ble CAT, Principal Bench in OA No. 655/2010, order dated 29.4.2013 of Hon'ble High Court of Delhi in WP (C) No. 1535/2012 and order dated 17.3.2015 of 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 pre - 2006 pensioners/family pensioners may be revised in accordance with this Department's O.M. No.38/37/08-P&PW(A) dated 28.1.2013 with effect from 1.1.2006 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 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 CAT/High 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.

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

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

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

Heard learned counsel for the parties and perused the material placed on record.

This OA was filed by the applicants in the year 2014 and subsequently the issues raised in this OA have been squarely dealt with by the respondent and has passed the OM No.38/37/08- P&PW(A) dated 6.4.2016 on the subject of revision of pension of pre-2006 pensioners - delinking of revised pension from qualifying service of 33 as quoted above and accordingly revised pension orders have been issued and as such nothing remains to be decided by this Tribunal in this OA.

In view of the above position and for the foregoing reasons, the applicants are directed to approach their concerned pension payment authorities to get their revised PPO as per the Ministry of Personal, PG & Pensions OM No.38/37/08-P&PW (A) dated 6.4.2016 and the concerned pension payment authorities are directed to consider the cases of the applicants and pay them revised pension, if any due, according to the said OM dated 6.4.2016.

In the result, with the above directions, the OA stands disposed of. There shall be no order as to costs.