Tuesday, August 18, 2015

EXTRACTS FROM SWAMYNEWS



EXTRACTS FROM SWAMYNEWS
August 2015:
Report of 7th Pay Commission Expected by September 2015.
Earlier Pay Commissions were set up in the past for evolving compensation package at intervals of 10 to 13 years.  (Our Emphasis:  Why not in every 5 years as followed by State Governments even when these are getting Central Govt. Grants ? Is a point for introspection by Elite People.)  Pay Bodies are found necessary to enable the Govt. employees to lead Clean, Honest and Respectable lives at standards compatible with what their peers have meanwhile attained or what they accept to be reasonable.

( I ) CPC appointed in May-1946 (Before Independence) Reported in May 1947; ( II ) CPC Apptd. in Aug-1957 (After Independence) Reported in August 1959; ( III CPC ) Apptd. in April-1970 Reported March 1973;  ( IV ) CPC Apptd. In July 1983 Reported in Jun-86, Dec.86 & May 1987;
( V ) Apptd. In April 1994 Reported in Jan-1997; ( VI ) CPC apptd. In Oct-2006 Reported in March 2008;  ( VII ) CPC Apptd in Feb-2014 Expected to Report in September 2015.

Instructions regarding timely issue of charge-sheet
DOPer&Trg.,GOI OM No.35014/1/81-Estt.A, dated 9-11-1982 and reiterated in a consolidated form of even No. dated 2.1.2014 (Sl.No.22 of Swamy’s Annual, 2014) – the case of Ajay Kumar Choudhary - v - Union of India, Civil Appeal No. 1912 of 2015 dated 16.2.2015.  When clear instructions were already issued, when an Appeal is filed by the GOI is a question one should ponder over.  The Appex Court in its own words directed –
“ We, therefore, direct that the currency of Suspension Order should not extend beyond three months if within this period the Memorandum of Charges/Charge-Sheet is not served on the delinquent officer/employee.”  (Sl No.157)

Re-Classification/Upgradation of Cities/Towns on the basis of Census-2011
for HRA to C.G.Employees
(Vide GI.,M.F.,O.M.No.2/5/2014-E.II(B) dated 21-7-20125) X Y Z  Orders to take effect 1st April 2015.
Sl.No.
States / Union Territories
City Classified as – X
City Classified as – Y
2.
Andhra Pradesh / Telangana
Hyderabad ( U.A. )
Vijayawada (U.A.) Warangal (UA)
Greater Visakhapatnam(M.Corpn)
Guntur (UA)   -  Nellore (U.A.)
 (*) In Haryana against Sl.No.13 the Citites Faridabad (M.Corpn) and Gurgaon (U.A.) are upgraded as “ Y “ Cities – Only for the purpose of extending HRA on the basis of dependency.
Note: The remaining cities / towns in various States ‘ UTs which are not covered by classification as “X” or “Y”, are classified as “Z” for the purpose of HRA. ( Sl.No.159 of SwamynewS Aug.2015 )

Web Portal – “ RTI on Line “
( GI.,Dept. of Per.&Trg. O.M.No.F.No.1/6/2012-IR dated 2.7.2015 – Sl.No.168 of SwamynewS – 8/’15)
1.       RTI Week Celebration – Every Year 5th – 12th October. SICs will be provided financial assistance Rs.3.00 Lakhs each based on their proposal.  Less-expensive modes of Publicity etc.
2.       Innovative Awareness Generation Programmes : ATIs will be provided upto Rs.4.00 Lakhs each include nukkad nataks – local fold troupes, publicity in local languages etc.
3.       Organisation of Workshops/Seminars : ATIs will be provided a sum of Rs.1.00 Lakh per workshop/seminar – RTI themes – suo motu disclosure etc.
4.       Funds for publication of Guide Books in regional languages – Maintaining Helpline in ATIs – could also be set up in collaboration with NGOs working in the field of RTI.
5.       Support for Capacity Building – Trg of SPIOs/CPIOs/ & FAA – First Appellate Authorities
6.       Simplification of processes for filing of RTI
7.       Improved record management / suo motuj disclosure
8.       Institutional mechanism for collaborative working with CSOs and Media
9.       Sanction and Release of Financial Assistance.
The first meeting of the SMC is scheduled for the first week of August, 2015. These guidelines are in supersession of OM No.1/6/2012-IR dated 22.8.2014.
PROPOSALS in the prescribed proforma (Annexure) may be sent to : Shri Sandeep Jain, Director (IR) Room No.279A, Dept. of Personnel & Training, Northj Block, Tf 23092755 – eMail: sandeep.j@nic.in

TRIBUNAL  - JUDGEMENTS
Sl.No.86  (O.A.No.352 of 2013 Shri Bhimsen Dayachand Lohariya Vs Genl. Manager (Personnel) Central Rly Mumbai & another Date of Judgement 13-10-2014) Compassionate Ground Appointment  to the applicant herein due to the death of his father who was a Safaiwala /Sweeper in Rlys has to be considered, as the age of his father cannot be only about 4 months higher than his eldest son, as that age of his father was incorrectly recorded due to the ignorance of his father in his records.  Moreover, the father of the Applicant having expired, the question of verification of age of the deceased now, does not arise. (the Tribunal HJeld and R-2 DRM (Personnel) of Mumbai CST was directed to consider the application dated 23.5.2011 within a period of 4 weeks from the date of receipt of this order.)

Sl.No.87 (O.A. 301 of 2014 – Shri C.H.Wadigeri v. Secretary of DOP & others – date of judgement 13-8-2014. A Postal Asst. in Gulbarga Dn. Joined in 1976 promoted as IPOs and ASPOs in 1983 and 1993 respectively. The applicant was suspended from service based on a CBI report wef 2-4-2011. Criminal case was filed by CBI on 28-9-2011.  Department initiated Rule-14 proceedings on 12-12-2011 under conduct rules of accepting illegal gratification.  Against this charge sheet the applicant filed this O.A. to set side and put him on duty with full wages. The CBI Court exonerated him of the charges leveled against the applicant.  Applicant prayed for setting aside the departmental charge sheet and to reinstate him. It was felt by the Tribunal that it could not get the proceedings order dated43-2-2014 referred to be the applicant as it is not available in the O.A. 2 more cases of laws of Appex Court were also cited by the Tribunal. ( Respondents are directed to complete the enquiry in a period of 6 weeks from the date of this order and the Applicant is directed to co-operate with authorities for completion of the enquiry in the stipulated time.  As the OA id disposed of, M.A. No.281 of 2014 for vacating the stay is also disposed of.  O.A. is dismissed with the above observation. )

Sl.No.88 ( O.A. 158 of 2013 Shri M.P.Dinesh v. Secretary DOP & others dated of judgement 9-12-2014- Ernakulam) Applicant temporarily promoted to Group D in Postal Dept from GDS service (EDMM – in SRO Kannur RMS was  up to 31-12-2006 to join as Mail Guard “CT” Dn./  The Supdt. RMS inducted him to NPS wef 1-1-2004 ) and released to work in APS in Kerala Circle, Kozhikode.  As his promotion to Group D service in APS falls prior to 1-1-2004 he is governed by CCS (Pension) Rules, 1973 and NOT under NPS came into force from 1-1-2014 for his retiral benefits.  In the result, the Tribunal directed (1) to refund the amounts collected fixing him under NPS to pay back to the applicant with 6% interest and that the applicant is entitled for pension under CCS (Pension) Rules 1972 and to fix pension accordingly.  (2) “ since the regular service in the APS commenced prior to 1-1-2004 the applicant is governed by CCS (Pension) Rules 1972. Respondents are directed to stop recovery of contributions to the NPS and to refund the amount so far collected from the applicant with interest at 6% from the date of recovery in each month until the date of refund”.

Sl. No. 89 (O.A. No.1132 of 2013 – Shri T.C.Parameswaram v. Secretary DOP & others (Ernakulam) dated of judgement 7-11-2014) Applicant after working as Casual Labour with temporary status Group D since 20-5-1993 was regularized as Multi Tasking Staff (MTS) against vacancies in 2011. He joined the post on 2-5-2013.  He is  aggrieved by the steps taken by the respondents to deduct the contribution to the newly introduced Contributory Pension Scheme wef 1-1-2014.  Tribunal held – “he may be entitled to a notional extension of his date of appointment to the year in which the vacancy arose (in 2011) for the purpose of counting qualifying service.  Obvisously, if 50% of the total service rendered by the applicant as Casual Labour with temporary status is reckoned, the applicant would get half of the temporary status i.e., from 20-5-1996 till the date of last vacancy arose in the year 2011 to be added to the period of his regular service.   It is further allowed the OA directing the R-1 Secy.DOP, R-2 CPMG Kerala R-3 SSPOs Ernakulam and R-4 IPOs Aluva to work out his qualifying service subject to the fulfillment of the minimum qualifying service for grant of pension.  He shall be paid pension and other terminal benefits on the basis of CCS (Pension) Rules 1972. Further directed the respondent to process his pension papers on priority basis ( as the applicant is 59 years old on the date of O.A.) and to refund the amounts deducted from his salary towards the NPS.  It is further made clear that the pension of the applicant shall be considered in accordance with CCS (Pension) Rules 1972 giving weightage to his temporary service and giving all consequential benefits.

Sl.No.90 – Shri K. Rajan v. Supdt. Of POs Mavelikkara Dn & others (Ernakulam) date of Judgement 18-11-2014 – A Postal employee employed against ex-Serviceman quota and after his release from Military Service is entitled to nominate his wedded wife as his family pensioner. Mrs. Lohitha as his wedded wife and she was taken care of by his brother when he was serving in Military,  no opportunity was given by the Respondents to the applicant and his wife to state their positionand also no legally acceptable inquiry was made to state that Mrs. Lohitha is applicant’s brother’s wife. The applicant filed this OA for a declaration that Smt. Lohitha is his wife and that the unilateral decision of deleting the name of Smt. Lohitha for getting family pension is incorrect and he may be paid costs for this litigation by Respondent. 

The Respondents demanded to produce his marriage certificate as the local enquiries made by Postal Inspector prove that Mrs. Lohitha is the wife of his brother.  Shri Dharmapalan which is not proved reliably and legally by the Respondents by Certificate of Marriage or by a solemn statement by any member of that family.   The applicant does state that POLYANDRY was in vogue in that locality.  As he was in Military, his elder brother was looking after the family and that practice in vogue is stated in an inarticulate manner.  The bondage of the applicant and his elder brother is strong that the applicant entrusted his look after his wife to his brother when he was away in Military Service.

Respondents state that the Inspector of Posts had summoned the applicant and other people for obtaining evidence regarding marital status of the applicant but none turned up in the enquiry.  It appears that the respondents thereafter jumped into the conclusion that the applicant is guilty of marrying the wife of another during subsistence of their marriage.  Respondents seems to have ignored the other possibilities including the possibility that after marriage, consensual “Polyandry” was practiced in the family without disrupting the marital bondage. 

In the case of Madan Mohan Singh v. Rajnikant (2010 (9) SCC 209) it was held by Apex Court that “if a man and woman are living together in the same roof and cohabiting, there will be presumption under Section 114 of the Evidence Act that they live as husband and wife and the children born to them will not be illegitimate”.

It was further held: “ It is trite law that when an administrative act is performed by the authorities affecting the rights of individuals, natural justice demands that such individual should be given opportunity to be heard.  In the instant case, before cancelling grant of family pension orders, no steps have been taken by the respondents either to issue notice to the applicant or to Mrs. Lohitha for hearing their versions.  Similarly no proper legally acceptable enquiry was made by respondents before coming to the conclusion that Smt. Is the wife of Shri Dharmapalan (borther of the Applicant”.  In the light of the above, the Tribunal came to the conclusion that withdrawal of family pension to Mrs. Lohitha, wife of the applicant deserves to be quashed and set aside.  Ordered accordingly.  Respondents are directed to enforce grant of family pension to Mrs. Lohitha until Competent Civil Court declares that the applicant is not legally married with Smt. Lohitha.

NOTE: Prejumption of MCM-Secretary-BPS.  What if applicant OA remarries for submission of Certificate of Marriage afresh even after retirement as it is permitted by Pen-Rules- Family Pension ?

Sl. No. 94 – Leaving out an eligible candidate for grant of promotion who is within the zone of consideration including the quota prescribed for reservation and possessing fitness for promotion and promoting his juniors on the alleged reason to accommodate the reserved quota is incorrect.  Hence the Tribunal directed Respondents to promote the Applicant from the date he is due to the post of Section Engineer in Railways notionally as he had already retired and fix his pay notionally.  Based on notional fixation of his pay, the final settlement dues are to be fixed and arrears arising thereon should be paid. ( O.A. No. 262 of 2012  Shri U.N.Iyengar v. General Manager, South-Eastern Railway & Others ( Jabalpur) date of judgement 13-1-2015 )

Through  a letter dated 4-11-2009, it was ordered to comply promotion of staff (as noted above) as one-time exception within schedule time considering three years ACR 2006-07 to 2008-09 and vigilance clearance is to be obtained before ordering promotion.

The applicant is senior to private R-5 and R-6. Eight vacancies were to fill up vide letter dt. 11-3-2010 on seniority-cum-fitness without following roster points and in proportion of 1:1 i.e., fill up one post only one candidate from the zone of consideration.   Though senior to R-5 and R-6, the applicant was wrongly excluded for consideration as he had already retired and therefore consideration of R-5 and R-6 against one post is wrong on the basis of seniority-cum-fitness.  Relied upon 6th CPC pay scale, the grade of posts were combined i.e., Grades I and II with Pay Band 2 with Grade Pay of Rs.4,600. 
The tribunal after examining the various points raised by both sides concluded that the respondents admitted their mistake on their part in not considering the applicant.  From its discussions, the tribunal it transpired that the applicant should have been promoted even though he retired.  If not promoted, his final settlement, dues will be affected aversely.  The stand taken by the respondents in not promoting the applicant is arbitrary and the applicant is entitled for promotion from 154-10-2010 when his juniors R-5 and R-6 were promoted on that date against reserved quota.

In the result, the OA is allowed directing the respondents for consideration of the case of the applicant who is entitled for promotion as Section Engineer with effect from 15-10-2010 prior to his retirement.  The respondents are directed to issue necessary promotion order and pay the applicant on the re-fixed pay on promotion from 15-10-2010.  Modified pension pay order is to be issued to him within two weeks from the date of receipt of this order.  The applicant is also entitled to all consequential benefits.  The OA is thus disposed instructing the parties to bear their respective cost of this OA.
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Sl. No.98 -   O.A. Nos. 060/00039 of 2014 – Shri Davinder Kumar Vasesi  v. Comptroller & Auditor-General of India & Others (Chandigarh) date of Judgement dated 28-8-2014 –
1.       Administrative decisions cannot be applied retrospectively but only after the date of issue of such decisions.  The applicant herein, underwent Liver Transplant surgery in the year 2011 whereas the amount payable to such surgery came into existence only on `16-1-2013.  Hence denial of amount claimed based on the administrative decision issued later to the date of surgery in 2011 is not permissible.
2.       Other similarly placed applicants were paid the amount charged, whereas in the case of the applicant, the charges to be paid is denied which violates the law laid down which stipulates to avoid arbitrariness or discrimination violating Articles 14 and 16 of the Constitution.
The applicant OA underwent Liver Transplant surgery in Apollo Hospital at Chennai on 1-7-2011 incurring Rs.33,60,000, bill submitted for Rs.30,18,954 to Sr. Acct.General  (Admn) in the office of R-3 Acct.Genl.(Audit) R-3 approved an amount of Rs.11,55,517.  Against this OA arose. Requested for balance amount with 18% interest per annum from the  sanction date till actual date of payment of balance reimbursement claim excluding Rs.11,55,517. The tribunal examined the issue after hearing both sides. The tribunal came to the conclusion that the prayer of the applidcant is reasonable and would comment upon the legality of the OM letter. Tribunal took into view the provisions of Article 21 or Article 47 of the Constitution held valid in the case of State of Punjab and Others v. Ram Lubhaya Bagga & others (1998(4) SCC 117). Similar question had been cropped up in the case of Confederation of Ex-Serviceman Association & others v. Union of India & others and the Apex Court followed by Ram Lubhaya case (supra). The case law of Major Singhal v. Director General Armed Forces & another (AIR 1972 SC 628) and another case, it was said that the right vested in the applicant prior to relevant instructions could not be taken away by retrospective operation of the same, more so when the same talks of prospectivity in-as-much as the sane clearly state the time and date of the instructions i.e., with effect from 16-1-2013.  In these circumstances, restricting the claim of the applicant on the basis of instructions dated 16.1.2013 is illegal, arbitrary and invalid.  Hence the interface memo enclosed runs contrary to the instructions, dated 16-1-2013, it was held.

In view of the above, the OA is allowed and the Respondents are directed to look into the matter afresh in the light of what has been held and observed hereinabove and pass appropriate orders within a period of three months from the date of receipt of this order.
SwamysnewS June – 2015
3rd Page – CENTRAL ADMINISTRATIVE TRIBUNAL Principal Bench – O.A. No.1165/2011
with O.A. No.2165/2011 and  O.A. No.247/2012 – Date of Judgement – 21st day of April 2015. Bench : Hon’ble Mr. P.K.Basu, Member (A) and Hon’ble Mr. Raj Vir Sharma, Member (J)

Para 12 : In view of the judgments of the Hon’ble Supreme Court in D.S.Nakara (supra) v. Kasturi (supra) T.S.Ghiruvengadam (supra) and order of the Full Bench of the Tribunal in O.A. No.937 or 2010 with O.A. No.2101 of 2010, dated 20-11-2014, we are of the opinion that the prayer in the OAs is fully justified.  We, therefore, quash the set aside the impugned orders, dated 3-10-2008 and 19-3-2010 being  violative of law laid down by the Hon’ble Supreme Court and direct the Respondents that the qualifying service for earning full pension will be treated as twenty years also for those who retired from the Central Government Service on or before 31-12-2005 and were alive on that day.  The Respondents are also directed to modify / amend all relevant Government orders / letters / notifications in accordance with the above decision.  It is made clear that this parity of pension between pre-and  post 1-1-2006 pensioners (on the question of eligibility of minimum pensionable service of twenty years) would apply both as regards pension and family pension.  The Respondents are granted three months time from the date of receipt of this order for implementation of directions contained in this order. (Courtesy: cgat.gov.in)

Sl. No.60 : O.A.No. 754 of 2012 – Shri Devi Krishan Sharma v. Secretary, Min. of Urban Develop -ment &   Others (Principal Bench) date of Judgment 11-7-2014 – In a case, where the Government Servant is dismissed / removed from service, Compassionate Allowance under Rule 41 (1) of CCS (Pension) Rules 1972, if asked for should be considered taking various points into account.  Financial condition of the Government sedrvant’s family would also be a factor to be considered though not a deciding factor.  Merits and circumstances of each case should also be taken into account for arriving at a decision.  Hence is it was held: “ Under the above circumstances, the impugned order, dated 18-1-2012 is quashed and set aside.  The matter is remitted back to the Respondents for reconsideration of the case of the applicant for Compassionate Allowance in terms of the observation as above and pass a speaking order in accordance with law within a period of 8 weeks from the date of receipt of this order.  Thus the OA is allowed”.
HEARING AIDS
G.I., M.H.,O.M.No.S-14025/10/2002/MS dated 26.5.2015 – Revision of rate and guidelines for reimbursement of expenses of Hearing Aids under CS (MA0 Rules, 1944 and CGHS.
it has been decided to revise the rates and guidelines for hearing aids to be reimbursed under CS (MA) Rules, 1944 and CGHS.  The revised ceiling rates fixed for various types of hearing aids (for one ear) are as under :- 
Body Worn / Pocket Type – Rs.3,000                                       Analogue BTE    -  Rs.7,000
Digital BTE                            -  Rs.15,000                                        Digital ITC/CIC   -  Rs.20,000
The cost of hearing aids shall include all taxes including VAT and shall carry 3 year warranty.  The cost of Analogue BTE / Digital BTE/ITC/CIC type hearing aid shall also include the cost of hearing mould.
(i)                  Patients/Beneficiaries should be properly referred to CGHS/Govt. Hospital ENT specialist from the parent CGHS wellness centre.
(ii)                To carry CGHS Beneficiary’s ID card (in original) for consultation and Audiometric test.
(iii)               The ENT specialist of CGHS/Govt. Hospital shall then recommend a hearing aid on basis of Audiometric and Audiological assessment, specifying the type of hearing aid most suited for the Beneficiary.  The Audiogram report shall be authenticated by ENT Specialist/Consultant of the CGHS/Govt. Hospital.
(iv)              Permission shall be granted by the Addl. Director (Zonal) in case of CGHS Pensioner Beneficiaries & for serving employees by the Head of Department/Office.  An undertaking that the beneficiary has not been reimbursed the cost of hearing –aid in the preceding five years.   ( For more other details refer to OM dated 26.5.2015 Please )

Sl.No.76 of SwamysnewS Tribunal Judgments : (O.A.No. 546 of 2012 Shri K. Raveendran v. Senior Supdt. Of POS, Thiruvananthapuram North Division & others, (Ernakulam) date of judgment 9-12-2014)
Service as Group D regular service earns pensionary benefits only if such service rendered is for 10 years.  In this case, the applicant who entered service as ED Agent (EDA) regularized as Group D postal servant on 17-10-2000 thereby possessing less than 10 years of service to enable him to get pensionary benefits when he retired on 30-9-2008.  In that situation, the Postal Authorities concerned are directed for treating the date of arising of the vacancy in 1998 as notional date of appointment instead of his actual date of joining Group D on 17-10-2000 and to grant him pensionary benefits as per the provisions of CCS (Pension) Rules, 1972.  Respondents to consider the representation of the applicant in the light of the observations made in this order and shall pass a considered order in this regard within two months from the date of receipt of a copy of this order and communicate to the applicant”.  OA is thus disposed of.
Courtesy: SwamysnewS Monthly.
Extracted for Information of Members of Bharat Pensioners’ Samaj & its Affiliates.
                                                = M. Chandramowli, Secretary – BPS-POPA., Hyderabad
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