Pensioner's day Message from the Secretary General, Bharat Pensioners Samaj

Friends,

             Pensioners’ Day is being observed on 17^th December  every year by pensioners all over the country to pay respect to D.S. Nakara who relentlessly pleaded  in the apex court for the cause of pensioners which resulted  in  the Land mark Apex court judgment in Writ petitions numbers 5939-41 of 1980.

             We commemorate this day on which  the judgment was delivered in the afore said writ petition on 17.12.1982,wherein the ‘Honorable  apex court’ observed that where all relevant considerations are the same, persons holding identical posts may not be  treated differently in the matter of their pay merely because they belong to different departments.  If that cannot be done when they are in service, can that be done during their retirement?  Expanding this principle, one can confidently say that if pensioners form a class, their computation cannot be by different formula affording unequal treatment solely on the ground that some retired earlier and some retired later.

            It is unfortunate that constant attempts are being made to water down and nullify the spirit of the above judgment.  Cut-off dates are being imposed to deny new benefits to past pensioners.

Pension is not a burden on the Govt. It  is our deferred wage & a service condition. Present day pensioners accepted  salaries which were intentionally designed at lower level to cater for  pension payment in old age. They let go Govt. matching contribution to  PF with interest at the rate of 8.33% of salary  per month and   worked hard during their productive years for the development of this country. 

Even today pensioners make endless contributions to their families, communities and society. They contribute as family care givers, as workers, consumers, volunteers and taxpayers. They stand shoulder to shoulder with fellow citizens in distress.  Even in death, they  give life & vision to the needy through organ donation & even donate their bodies to facilitate research by the younger generation.

It hardly matters if Govt. & the Civil Society do not care for us. Let's continue our duty to the Country & the Society till the last breath and  strive  to develop systems which enable all of us to act as one family with mutual confidence, support and growing interdependence.

I call upon all Pensioners organizations in the country to launch “Social Action Movement” on this Pensioners' day to carry on:

  1.Body and Organ Donations.

  2.Health Education for Senior Citizens.

  3.Guidence for the Children of the Pensioners  on employment opportunities. 

                                                 Pensioners unity Zinda Bad  

                                                                 Jai Hind

S.C.Maheshwari

Secy.Genl Bharat Pensioners Samaj

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          ( Extracts from Hon’ble CAT Principal Bench, Delhi Order 20.11.2014 )

             CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH

OA 937/2010 With  OA 2101/2010   at New Delhi this the  20th  day of November, 2014
Honble Mr. Justice Syed Rafat Alam,                               Chairman
Honble Mr. V. Ajay Kumar,                                              Member (J)
Honble Mr. P.K. Basu,                                                       Member (A)
OA 937/2010

1. All India S-30 Pensioners Association Through its President Shri M.P. Budhiraja
B-9/6371, Vasant Kunj, New Delhi-110070
etc. etc.

Versus
1. Union of India -  Through Secretary to the Govt. of India
Department of Pensions and Pensioners Welfare, Ministry of Personnel, Public Grievances and Pensions Lok Nayak Bhawan,
 New Delhi-110003

ORDER
Mr. P.K. Basu, Member (A)

By this common order, we propose to dispose of OA 937/2010 and OA 2101/2010 together as the issue involved and reliefs sought for by the applicants are the same.

2. The applicants are all pensioners who had retired while in VI Central Pay Commission (CPC) pay scale of S-30 i.e. Rs.22400-525-24500.  They have prayed as follows:

a) direct the respondent authorities to confer the same minimum notional pay scales starting at Rs.75500/- to the applicants since that is the scale which has been given to S-31 in view of the fact that S-30 and S-31 have always had the same minimum pay scale;

b) direct the respondents to consider the revised pay corresponding to the pay at which the concerned pensioner had in fact retired, instead of considering the minimum of the said pay scale, and to give the same pension/ family pension to pre and post 2006 retirees depending on the years of service;
c) remove any discrimination between pre and post 2006 retirees;     
d) direct the respondents to ensure that the applicants are given higher pension/ family pension than the pension given to post 2006 retirees who had worked in the lower pay scales viz. S-24 S-29 pay scales.
e) direct the respondents to refix pension/family pension of members of the applicant Association, work out the arrears of pension/ family pension with effect from 01.01.2006 as a result of this refixation and pay the same immediately along with interest, at the rate as decided by the Honble Tribunal from September 2008, i.e. the time when arrears of pension revision were paid as per new Pay scales;
f) direct the respondents to maintain the equation granted under prayer (a) to (e) above in the subsequent Pay Commissions so that the applicants are not required, in their highly advance age, to knock at the door of this Honble Tribunal again and again; and 
g) strike down OM dated 18.11.2009.

3. These OAs viz. OA 937/2010 and OA 2101/2010 had been disposed of vide order dated 6.03.2012 by the Full Bench of this Tribunal, dismissing both the OAs.  The matter was taken to the Honble High Court in Writ Petition (Civil) No. 4572/2012 and vide order dated 19.08.2013, the Writ was disposed of, setting aside the order of the Tribunal dated 6.03.2012.  The Honble High Court restored OAs No. 937/2010 and 2101/2010 for fresh adjudication on merits on the claim of the petitioners for full parity.  We quote below paragraphs 3 to 8 of the judgment as this would be relevant as we discuss the case further:

3. As per the petitioners, the originals applications filed by them as also the one filed by the S-29 scale retirees were being heard together till when the S-29 retirees restricted their claim to `modified parity and gave up their claim `full parity.   As per the petitioners they maintained a claim for full parity.

 
4. It is the case of the petitioners that in view of the fact that the retirees of S-29 scale had given up the claim for full parity the Tribunal specifically restricted them to argue their case on the issue of modified parity, but while deciding the said matter, even decided the issue of full parity, and for which assertion by the petitioners they have drawn our attention to the written submissions filed before the Tribunal by the retirees of S-29 scale. Indeed, we find that the counsels therein had restricted their submission on the issue of modified parity. Yet in spite thereof we find that the Tribunal, in its decision dated November 01, 2011, has decided the issue of full parity; and the  grievance urged before us is that said decision has been applied even to  the petitioners and the results is that the petitioners have been denied  an opportunity to argue their case for the reason we find that after the  judgment was pronounced in the case of S-29 scale retirees, arguments were not heard.

5. It is the case of the petitioners that there can be no disparity in  pension on the basis of the date of retirement. Admittedly pre-2006 S-30  scale retirees are receiving not only less pension vis-a-vis post 2006  retirees but in some cases even less than the post 2006 S-24 scale to S-29  scale retirees.

6. We find that this aspect has not been considered by the Tribunal.
 
7. We find an issue of parity raised between S-30 scale retirees and S-31 scale retirees and for which we find that in the impugned decision the Tribunal has only noticed the historical comparison between the two scales which shows that the minimum of both pay scales has always been the same, until the instant impugned action based upon the recommendations of the 6th Central Pay Commission. In the writ petitions, the petitioners have specifically referred to the following additional averments made, all of which have not been noted by the Tribunal:-

 
 (a) With regard to the above, it is relevant to note that S-29 Officers  can be promoted to both S-30 and S-31 scales directly,  after  rendering  three years service in S-29 scale. Thus, S-30 and S-31 are promotional posts for S-29 officers after rendering the same amount of service.

(b) Further,  for S-30  officers  to enter S-31 service, nil experience is required in S-30 service.

(c) Appointments to S-30 and S-31 are interchangeable in nature. The factum of their being interchangeable also shows the similar nature of duties etc. being carried out by the employees of S-30 and S-31.

(d) It is submitted that it is for the Government to show what was their reasonable basis or intelligible differentia for giving a higher minimum scale to S-31 employees than that being offered to S-30 employees, when the Government had all along maintained parity at the minimum level in the two scales. The said onus rests on the Respondents which they  have completely failed to discharge. A reference to the judgments of the Honble Supreme Court on this aspect shall be made during the course of hearing.

(e) It is further relevant to note that both S-30 and S-31 officers require the same length of time i.e. two years service in the respective scales before being promoted to the next higher scale of S-33. This fact also conclusively establishes the similar nature of the two services.

8. Keeping in view the aforesaid facts, none of which are disputed by learned counsel for the respondents, with consent of learned counsel for the parties we set aside the impugned decision(s) dated March 06, 2012 and simultaneously we restore OA No.937 / 2010 and OA No.2101/2010 for fresh adjudication on merits by the Tribunal on the claim of the petitioners for full parity. The decision shall be rendered after giving full opportunity of hearing to the petitioners and the decision dated November 01, 2011 passed by the Tribunal in the case of S-29 scale retirees shall not be treated as binding upon it by the Tribunal for the reasons on the subject of full parity the said decision was pronounced notwithstanding said retirees giving up the claim for full parity.

 
4. The   present   matter   relates    to     fixation   of   pension/family pension in so far as persons who have retired on or before 31.12.2005 and who were working in S-30 scale of pay/ corresponding predecessor scales of pay prior to 1.01.1996.  The applicants are those who worked in and retired from the All India Services including the Indian Administrative Service, the Indian Police Service, the Indian Forest Service as well as the Central Civil Services.  The applicants also represent family pensioners, dependents of the deceased persons who were working in S-30 scale of pay or the corresponding predecessor scales of pay and had retired/ died while in service from the aforementioned services.  It is stated by the applicants that the material functions that were being discharged by the members of the applicants association before retirement and the level of responsibility have remained substantially the same in the last several decades during which the III, IV, V and VI Pay Commissions have made their recommendations.  It is further stated that the functions that were being discharged by those working in S-31 pay scale have also remained the same over the last several decades.  The applicants further stated that at the time of implementation of recommendations of III Pay Commission with effect from 1.01.1973, there was no categorization using the nomenclature S-30 and S-31.  The applicants were working in the scale of pay of Rs.3000/- and the next scale was the scale of Rs.3000-100-3500 i.e. the minimum stage of pay of both S-30 and S-31 was the same viz. Rs.3000/-.  When the IV Pay Commission recommendations were implemented from 1.01.1986, the minimum of both S-30 and S-31 was again the same i.e. Rs.7300/-.  On implementation of recommendations of V Pay Commission from 1.01.1996, the minimum of S-30 (Rs.22400-24500/-) and that of S-31 (Rs.22400-26000) was once again the same i.e. Rs.22400/-.  

5. The V Pay Commission also recommended a concept of `modified parity for pre-1.01.1996 pensioners vide which pension of all pensioners prior to the cut off date of 1.01.1996 was brought at par with the minimum pension payable to those retiring from a scale corresponding to the scale in which the pre 1.01.1996  pensioners had retired.  Those recommendations were implemented from 1.01.1996.  As such pension of all pre-1.01.1996 pensioners of scales corresponding to S-30 and S-31, introduced after V Pay Commission, was decided uniformly at Rs.11200/- being 50% of Rs.22400/-.

6. The VI Pay Commission contemplated five Pay Bands viz. 1S and PB-1 to PB-4 introduced to encompass all central government employees from lowest to the highest barring scales of pay S-33 and S-34 applicable to Secretaries and the Cabinet Secretary and equivalent posts.  Pay scales S-28 to S-32 were included in Pay Band 4 for which a running scale of Rs.39200-67000/- was recommended.  In effect, the minimum of the scale worked out to Rs.49400/-. However, there was a marginal difference in the grade pay corresponding to the respective scales of pay existing earlier.  The grade pay recommended for S-30 was Rs.11000/- while the grade pay recommended for S-31 was Rs.13000/-.  The respondent authorities, however, modified the recommendations of the VI CPC with respect of Pay Band 4 and issued orders whereby the scale of Rs.39200-67000 was reduced to Rs.37400-67000 and the grade pay corresponding to S-30 was fixed at Rs.12000/-.   On the other hand, for S-31, the scale was increased to Rs.75500-80000/- without any grade pay.  As a result of these changes made by the government, the pension of pre-2006 pensioners of S-30 scale of pay was sought to be fixed with reference to minimum pay of Rs.49400/- while that of pre-2006 pensioners of S-31 scale of pay with reference to minimum pay of Rs.75500/-.  

7. Vide order dated 1.09.2008, the government, following the recommendations of the VI Pay Commission, ordered revision of  pension of all the pensioners retired after 1.01.2006 as 50% of the pay drawn by them on the date of retirement or 50% of the average pay drawn during immediately previous ten months, whichever is favourable to the pensioners whereas the pensioners who retired on or before 31.12.2005, their revised pension is determined merely as a factor of the existing pension drawn by them, subject to the same not being less than 50% of the minimum of the pay in the pay band plus grade pay corresponding to the pre-revised pay scale.  Para 4.1 and 4.2 of the said OM dated 1.09.2008 are extracted below for ready reference:

4.1 The pension/ family pension existing pre-2006 pensioners/ family pensioners will be consolidated with effect from 1.01.2006 by adding together:-

i. The existing pension/ family pension
ii. Dearness Pension, where applicable
iii. Dearness Relief up to AICPI (IW) average index 536 (Base year 1982=100) i.e. @ 24% of basic pension/ Basic Family Pension plus dearness pension as applicable vide this Departments O.M.No.42/2/2006-P&PW(G) dated 5.04.2006.
iv. Fitment weightage @ 40% of the existing pension/ family pension.
Where the existing pension in (i) above includes the effect of merger or 50% of dearness relief w.e.f. 1.04.2004, the existing pension for the purpose of fitment weightage will be re-calculated after excluding the merged dearness relief of 50% from the pension.
The amount so arrived at will be regarded as consolidated pension/ family pension with effect from 1.01.2006.

46. Though neither side has raised this issue during the course of arguments, it may be felt that a Pension Scheme falls in the realm of policy making by the government and thus the Tribunal should refrain from interference unless the decision is palpably unreasonable or not

47. We are of the considered view that the OM dated 18.11.2009 is illegal, being contrary to the law laid down by the Honble Supreme Court in SPS Vains (supra) and D.S. Nakara (supra) and is, therefore, quashed and set aside.  We direct the respondents to consider the revised pay of the applicants corresponding to the pay at which the concerned pensioner had in fact retired, instead of considering the minimum of the said pay scale, thereby determining pension/ family pension to pre-2006 retirees.  This will automatically take care of the apprehensions of the applicants that their pension could be fixed below the pension fixed of post-2006 retirees who had worked in the lower pay scales viz. S-24 S-29 pay scales.  We, however, reject the claim of the applicants to confer the minimum notional pay scale starting at Rs.75500/- to the applicants as this is a matter which should be best left to expert bodies like Pay Commissions and the Tribunal would not like to enter into this arena.  In any case, seeking parity based on just the `minimum of the scales being same is not a convincing argument and would lead to opening up a Pandoras Box.  The respondents are directed to refix pension/ family pension of the applicants with effect from 1.01.2006 according to the above direction.   The arrears, however,  would   be    payable   only   from    the    date   of    filing    of     the  respective OAs.  The respondents shall complete the above exercise and pay the arrears, within three months from the date of receipt of a certified copy of this order, failing which they are liable to pay interest on arrears at G.P.F. rates w.e.f. the date of this order.  With these directions, the OAs are disposed of.

(P.K. Basu)                              (V. Ajay Kumar)         (Syed  Rafat Alam)

Member (A)                           Member (J)                            Chairman

                      *********************************************

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: April 29, 2013 + W.P.(C) 1535/2012 UNION OF INDIA & ANR. .....Petitioners Represented by: Mr.Rajeeve Mehra, ASG with Mr.Ruchir Mishra and Mr.Ashish Virmani, Advocates versus CENTRAL GOVT. SAG & ORS. ..... Respondents Represented by: Mr.Nidhesh Gupta, Sr.Advocate with Mr.M.K.Ghosh and Mr.Tarun Gupta, Advocates

 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: April 29, 2013 + W.P.(C) 1535/2012 UNION OF INDIA & ANR. .....Petitioners Represented by: Mr.Rajeeve Mehra, ASG with Mr.Ruchir Mishra and Mr.Ashish Virmani, Advocates versus CENTRAL GOVT. SAG & ORS. ..... Respondents Represented by: Mr.Nidhesh Gupta, Sr.Advocate with Mr.M.K.Ghosh and Mr.Tarun Gupta, Advocates

 W.P.(C) 2348/2012   

 W.P.(C) 2349/2012

W.P.(C) 2350/2012

CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE V. KAMESWAR RAO PRADEEP NANDRAJOG, J. (Oral)

1. We note that on January 28, 2013 the petitioners have issued an office order dated January 28, 2013 which reads as under:-

“OFFICE MEMORANDUM Sub: Revision of pension of pre-2006 pensioners –reg.

2. The only issue therefore which survives is, with respect to paragraph 9, of the office memorandum 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.

3. In short, the Government of India has tacitly admitted that it was in the wrong and that the Tribunal is correct.

4. As is well known, the recommendations of the 6th Pay

Commission did away with the hitherto fore applicable pay scales; replacing the same with pay bands having grade pay. For example, pay band I (PB-I) was `5200-20200 and embraced 12 previous pay scales between `2750-4400 and `8000-13500, but with 12 grade pays between `1800-5400.

5. How would the existing pensioners get pension was decided by the Government as per a resolution dated August 29, 2008 which accepted para 5.1.47 of the recommendations of the 6th Pay Commission

6. The respondents had made many submissions in their favour; two of which pertained to the law declared by the Supreme Court in the decision reported as 1990 (4) SCC 270 D.S.Nakara Vs. UOI and (2008) 9 SCC 125 UOI Vs. S.P.S.Vains. The Tribunal has negated said pleas. However, reasoning of the respondents on other plea pertaining to resolution No.12 aforesaid has found favour with the Tribunal.

7. We find that a Division Bench of the Punjab & Haryana High Court deciding W.P.(C) No.19641/2009 R.K.Aggarwal & Ors. Vs. State of Haryana & Ors. has referred to the decision impugned by the Tribunal, with reference to an identical question which arose in the State of Haryana because Government of Haryana had adopted the same policy decision of the Central Government. In the decision dated December 21, 2012, in paragraphs 21 to 26, the Division Bench of the Punjab & Haryana High Court has 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 pre-2006 pensioners shall not be less than 50% of the minimum of the pay band + grade pay, corresponding to the pre-revised pay scale from which the pensioner had retired. 22. 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.

26. 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.”

8. We are in complete agreement with the reasoning of the Division Bench of the Punjab & Haryana High Court and adopt the same and do not burden ourselves any further. We conclude by noting that as regards the substance of the view taken by the Tribunal, even the Central Government accepts its correctness, but insists to make the same applicable prospectively.

9. The writ petitions are dismissed. The decision of the Full Bench of the Tribunal is upheld but without any order as to costs.

(PRADEEP NANDRAJOG, JUDGE&V. KAMESWAR RAO, JUDGE APRIL 29, 2013.