Negative judgement of Kerala High court regarding re-fixation of pension with reference to the upgraded scale of pay (6th CPC)
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
TUESDAY, THE 26TH DAY OF NOVEMBER 2019 / 5TH AGRAHAYANA, 1941
OP (CAT).No.60 OF 2019
AGAINST THE ORDER/JUDGMENT IN OA 52/2017 DATED 12-09-2018 OF
CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH
PETITIONER/S:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA,
DEPARTMENT OF PENSION AND PENSIONERS WELFARE,
MINISTRY OF PERSONNEL,. PG AND PENSIONS,
LOKNAYAKBHAVAN, KHAN MARKET, NEW DELHI-110 003
2 SECRETARY TO GOVERNMENT OF INDIA
MINISTRY OF COMMUNICATIONS (DEPARTMENT OF POSTS), NEW
DELHI-110 001
3 THE CHIEF POSTMASTER GENERAL
KERALA CIRCLE, THIRUVANANTHAPURAM-695 033
4 DIRECTOR OF POSTAL ACCOUNTS
KERALA CIRCLE, THIRUVANANTHAPURAM-695 001
5 DIRECTOR OF P AND T OFFICE
THIRUVANANTHAPURAM-695 033
6 SUPERINTENDENT OF POST OFFICES
ALAPPUZHA DIVISION, ALAPPUZHA-688 012
BY ADV. SRI.T.V.VINU, CGC
RESPONDENT/S:
1 K.G.MANOHARAN
RETD. DEPUTY POST MASTER (HSG-I), ALAPPUZHA HPO,
RESIDING AT G.P. BHAVAN, KOMALAPURAM, AVALUKUNNU-688
006
2 R. MONIAN
RETD. DEPUTY POSTMASTER (HSG-I), ALAPPUZHA HPO,
RESIDING AT MITHILA VADAKKAL, SANATHANAPURAM,
OP(CAT).60/19 2
ALAPPUZHA-688 003
3 N. BHASKARAN PILLAI
RETD. DEPUTY POST MASTER (HSG-I), CHERTHALA HPO,
RESIDING AT BHASKARAM, PAZHAVEEDU, ALAPPUZHA-688
009
4 P. LEELAVATHY AMMAL,
RETD. POST MASTER (HSG-I), PONNANI HPO,RESIDING AT
ANANTHARAMAPURAM, SANATHANAM WARD, ALAPPUZHA-688
001
5 K. BALAKRISHNAN,
RETD. POST MASTER (HSG-I), ADUR HPO, RESIDING AT
ANOOP NIVAS, PANNIVIZHA, ADUR-691 523
6 N. SAROJINI AMMA
RETD. SUB POSTMASTER, (HSG-I), MAYITHARA MARKET,
RESIDING AT CMC 14, MARUTHURVATTOM, CHERTHALA-688
524
7 A.S. RAMACHANDRAN,
RETD. DEPUTY POSTMASTER (HSG-I), ALAPPUZHA HPO,
RESIDING AT SANKARAMANIKYAM, CMC 10, CHERTHALA-688
524
8 R. SANKARA WARRIER
RETD. POST MASTER (HSG-I) ALUVA HPO, RESIDING AT
THEKKEWARRIAM, THAKAZHY-688 562
9 T.K. RAGHAVAN NAIR
RETD. POSTMASTER (HSG-I), ALAPPUZHA HPO, RESIDING
AT PUTHENPURACKAL HOUSE, KAROOR, AMBALAPUZHA-688
561
10 CJ. RAJA
RETD. POST MASTER (HSG-I), ALAPPUZHA HPO, RESIDING
AT NAZIM MANZIL, LAJANATH WARD, ALAPPUZHA-688 001
11 R. RAMASWAMY
RETD. POSTMASTER (HSG-I), NEYYATTINKARA HPO,
RESIDING AT T.C. 23/64, RAGOM, NANDAVANAM STREET,
VALIYASALAI, THIRUVANANTHAPURAM-695 036
12 K. AHALIA BAI
(W/O. MOHANLAL PAI, RETD. POST MASTER (HSG-I),
ALAPPUZHA), RESIDING AT REVATHI, ANPURAM,
ALAPPUZHA-688 011
OP(CAT).60/19 3
13 GEETHA NARAYANAN,
(W/O. V. NARAYANAN, RETD. ASST. ACCOUNTS OFFICER, P
AND T AUDIT, THIRUVANANTHAPURAM),RESIDING AT
SREEKRIPA, TIRUMALABHAGOM-688 540
14 B. CHANDRIKA DEVI AMMA
(W/O. P. CHANDRASEKHARAN PILLAI, RETD.
SUPERINTENDENT OF POST OFFICES, IRINJALAKKUDA
DIVISION), RESIDING AT SAI JYOTHI, KOONAYIL,
PARAVUR-691 301
R1-3, R5, R8-10, R12-13 BY ADV. SRI.V.MADHUSUDHANAN
R1-3, R5, R8-10, R12-13 BY ADV. SRI.B.UNNIKRISHNA
KAIMAL
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 26.11.2019, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(CAT).60/19 4
K.VINOD CHANDRAN & V.G.ARUN, JJ.
-----------------------------------------------
OP(CAT).No.60 of 2019
-----------------------------------------------
Dated this the 26th day of November, 2019
JUDGMENT
Arun, J.
The Union of India and its officials are aggrieved by
Exhibit P5 order of the Central Administrative Tribunal,
Ernakulam Bench in O.A.No.52 of 2017.
2. The issue projected in the original application
pertained to the entitlement for revision of pension and
other terminal benefits of the retired Central Government
employees pursuant to the recommendations of the VIth
Central Pay Commission. As per Annexure A2(as marked in
the original application), revision of pension in accordance
with the VIth CPC recommendation was approved and
implemented with effect from 1.6.2006.
3. Applicants 1 to 11 are persons who had retired prior
to 1.1.2006, while working as Postmasters/Deputy
Postmasters in the Higher Selection Grade-1(HSG-1).
OP(CAT).60/19 5
Applicants 12 to 14 are widows of pre-2006 pensioners. The
husbands of applicant Nos.12,13 and 14 had retired as
Postmaster (Higher Selection Grade-I), Assistant Accounts
Officer (P&T Audit) and Superintendent respectively. The
pension/family pension of pre-2006 retirees was revised as
per Annexure A3 O.M dated 1.9.2008. Clause 4.2 of
Annexure A3 reads as follows;
“4.2 The fixation of pension will be subject to
the provision that the revised pension, in no case,
shall be lower than fifty percent of the minimum of
the pay in the pay band plus the grade pay
corresponding to the pre-revised pay scale from
which the pensioner had retired. In the case of
HAG+ and above scales, this will be fifty percent of
the minimum of the revised pay scale.”
After implementation of the 6th CPC recommendations, the
pre-revised pay scale from which the applicants had retired
was upgraded and the pay structure revised, in terms of the
CCS (Revised Pay) Rules, 2008. Majority of the pensioners,
including the applicants, sought re-fixation of pension with
reference to the upgraded scale of pay, on the premise that
the revised consolidated pension of pre-2006 pensioners
OP(CAT).60/19 6
should not be lower than 50% of the minimum upgraded pay
in the pay band and the grade pay of the post from which
the pensioner had retired. The demand was turned down as
per Annexure A4 dated 11.2.2009, the relevant portion of
which reads as follows;
“4. The Table in Annexure-1 of this
Department's OM dated 14.10.2008 is based on the
CCS (Revised Rules), 2008 which are applicable to
the employees in the service as on 1.1.2006 and no
dispensation in this regard can be made in respect of
pre-2008 pensioners for the purpose of application of
the provision of Para 4.2 of this Department's OM
dated 1.9.2008.
5. In accordance with the instructions contained
in para 4.2 of this Department's OM of even number
dated 1.9.2008, the fixation of pension will be
subject to the provision that the revised pension, in
no case, shall be lower than fifty percent of the
minimum of the pay in the pay band plus the grade
pay corresponding to the pre-revised pay scale from
which the pensioner had retired. Therefore, the
benefit of upgradation of posts subsequent to their
retirement would not be admissible to the pre-2006
pensioners in this regard.”
4. Annexure A4 was successfully challenged before the
Principal Bench of the Central Administrative Tribunal by
OP(CAT).60/19 7
some of the pre-2006 pensioners, resulting in Annexure A5
order. The Tribunal quashed Annexure A4 and directed to
refix the pension of all pre-2006 retirees with effect from
1.6.2006 based on Annexure A2 resolution and in the light of
the observations in the Tribunal's order. The order of the
Tribunal was challenged unsuccessfully by the Government
before the High Court of Delhi and an SLP filed against that
judgment was dismissed by the Honourable Supreme Court.
The applicants claimed the benefit of Annexure A5 order of
the Principal Bench. In support of their claim, the applicants
relied on the decisions of the CAT, Principal Bench in
O.A.No.655 of 2010 and that of the Ernakulam Bench in
O.A.No.526 of 2016, wherein the Tribunal held the applicants
therein to be entitled for revised pension in terms of
paragraph 4.2 of O.M dated 1.9.2008 or 50% of the
minimum pay in the upgraded pay scale and corresponding
revised pay band, whichever is beneficial. The claim of the
applicants was turned down by the Government, whereupon
the original application was filed.
5. The order impugned in this original petition was
OP(CAT).60/19 8
rendered by the Tribunal relying on its order in O.A.No.526
of 2016. The operative part of the impugned order reads as
follows:
“12. Accordingly, the Original Application is
disposed of holding that the applicants are entitled to
a revised pension in terms of paragraph 4.2 of OM
dated 1.9.2008 or 50% of the minimum pay in the
pay band of Rs.9.300-34,800/- with Grade Pay of
Rs.4,600/- (in case of applicants 1 to 12) &
Rs.4,800/- (in the case of applicants 13 & 14) or as
per Annexure A4 fitment table, whichever is
beneficial to the applicants. Accordingly, the
respondents are directed to issue revised Pension
Payment Order in terms of what is stated above
within a period of two months from the date of
receipt of a copy of this order. No costs.”
6. When the matter was taken up for consideration
today, the learned Central Government Counsel submitted
that the challenge raised in the original petition cannot
survive in view of the judgment of this Court in
O.P(CAT).No.277 of 2017 and connected cases.
O.P(CAT).No.277 of 2017 was filed against the order of the
Tribunal in O. A. No.526 of 2016 and connected cases. In
OP(CAT).60/19 9
OP(CAT).No.277 of 2017 and connected cases, a Division
Bench of this court dealt with the same question, as to
whether the pension of pre-2006 retirees is to be revised,
based on the up-gradation and re-fixation of pay scale of
the post from which he/she had retired. The question was
considered in the light of the decision of the Honourable
Supreme Court in Krishnaswamy and Others v. Union of
India and Another [(2007) 2 SCC (L&s) 491]. The Division
Bench observed that the Principal Bench of the Tribunal,
while setting aside Annexure A4 had failed to take note of
the dictum in Krishnaswamy's case (supra) and hence
the order was rendered per incurium. After elaborate
consideration, the Division Bench answered the question in
the following manner:
“37. Therefore, the question is what was the legally sustainable contention and supporting material
available to uphold the claim of the respondent for the grade pay of Rs.4600/- ? Evidently, the Tribunal accepted the contention of the respondent herein/the applicant that in view of the decision of this Court in O.P. (CAT)No.169/2015, the computation of pension based on the decision of implementation on the OP(CAT).60/19 10 recommendations of the VIth CPC has to be 50% of
the pay scale with respect to the scale of pay applicable to the post in question and not the
corresponding pre-revised scale of pay from which the pensioner had retired. This is evident from the
recital in paragraph 8 of the impugned order which would reveal that the contention of the respondent
herein that as per the VIth CPC the revised pay scale of Postmaster HSG-I is Rs.9300-34,800 with Grade Pay of Rs.4,600/- with effect from 1.1.2006 was taken into account by the Tribunal for holding that though the respondent herein had retired from service in the pay scale of Rs.6,500-10,500/-, on
account of his promotion as HSG-I after his retirement the pay scale applicable to HSG-I at the
time of his retirement should be his pre-revised pay in terms of paragraph 4.2 of O.M. dated 1.9.2008.
Since the corresponding revised pay of Deputy Postmaster HSG-I after the VIth CPC was Rs.9,300-
34,800/- with Grade Pay of Rs.4,600/- with effect from 1.1.2006 his pension has to be fixed as 50% of the minimum pay in the pay band of Rs.9,300- 34,800/- plus Grade Pay of Rs.4,600/- or as per the
minimum pay in the pay band of Rs.9,300-34,800/- plus grade pay of Rs.4,600/- as per the fitment table, whichever is more beneficial to the petitioner. Thus, it is obvious that virtually, the reason for holding that the respondent herein is entitled to a revised pension OP(CAT).60/19 11 of 50% of the minimum pay in the pay band of Rs.9300- 34,800/- with Grade Pay of Rs.4,600/- is that it is the scale of pay, in fact, pay band applicable to the post of Deputy Postmaster. This finding is, no doubt, in conflict with the binding decision in
Krishnaswamy's case (Supra). We have already found that the decision in O.P.(CAT)No.169/2015 was rendered without referring to the decision of the Apex Court in Krishnaswamy's case (supra). In such circumstances, in the light of the decision in Krishnaswamy's case (supra) and Sethumadhavan's case (supra), the said direction cannot be sustained. In short, in view of the factual matrix obtained in this case, the respondent is entitled only to the grade pay of Rs.4,200/- which is the normal replacement pay structure Grade Pay and he cannot, as a matter of right, claim Rs.4,600/- as
Grade Pay for the purpose of calculating his revised pension based on the decision in implementing the recommendations of the VIth CPC. Hence, the calculation of revised pension as per VIth CPC
corresponding to the pre-revised pay scale from which he retired can be taken only as Rs.9300-
34,800 + G.P. Rs.4200/-, based on para 4.2 of O.M. dated 1.9.2008 can only be Rs.6750/-. At the same time, calculation of revised pension as per para 4.1 of O.M. dated 1.9.2008 is Rs.8842/-. The respondent was not able to establish that he is entitled to get OP(CAT).60/19 12 Rs.9,230/- w.e.f. 1.1.2006. As regards the first prayer of the respondent in O.A.No.526/2016 for a declaration that he is entitled to revised pension based on the pay band plus grade applicable to HSG-I w.e.f. 1.1.2006, we have already found the prayer is impermissible to be granted in view of the decision in IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
TUESDAY, THE 26TH DAY OF NOVEMBER 2019 / 5TH AGRAHAYANA, 1941
OP (CAT).No.60 OF 2019
AGAINST THE ORDER/JUDGMENT IN OA 52/2017 DATED 12-09-2018 OF
CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH
PETITIONER/S:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA,
DEPARTMENT OF PENSION AND PENSIONERS WELFARE,
MINISTRY OF PERSONNEL,. PG AND PENSIONS,
LOKNAYAKBHAVAN, KHAN MARKET, NEW DELHI-110 003
2 SECRETARY TO GOVERNMENT OF INDIA
MINISTRY OF COMMUNICATIONS (DEPARTMENT OF POSTS), NEW
DELHI-110 001
3 THE CHIEF POSTMASTER GENERAL
KERALA CIRCLE, THIRUVANANTHAPURAM-695 033
4 DIRECTOR OF POSTAL ACCOUNTS
KERALA CIRCLE, THIRUVANANTHAPURAM-695 001
5 DIRECTOR OF P AND T OFFICE
THIRUVANANTHAPURAM-695 033
6 SUPERINTENDENT OF POST OFFICES
ALAPPUZHA DIVISION, ALAPPUZHA-688 012
BY ADV. SRI.T.V.VINU, CGC
RESPONDENT/S:
1 K.G.MANOHARAN
RETD. DEPUTY POST MASTER (HSG-I), ALAPPUZHA HPO,
RESIDING AT G.P. BHAVAN, KOMALAPURAM, AVALUKUNNU-688
006
2 R. MONIAN
RETD. DEPUTY POSTMASTER (HSG-I), ALAPPUZHA HPO,
RESIDING AT MITHILA VADAKKAL, SANATHANAPURAM,
OP(CAT).60/19 2
ALAPPUZHA-688 003
3 N. BHASKARAN PILLAI
RETD. DEPUTY POST MASTER (HSG-I), CHERTHALA HPO,
RESIDING AT BHASKARAM, PAZHAVEEDU, ALAPPUZHA-688
009
4 P. LEELAVATHY AMMAL,
RETD. POST MASTER (HSG-I), PONNANI HPO,RESIDING AT
ANANTHARAMAPURAM, SANATHANAM WARD, ALAPPUZHA-688
001
5 K. BALAKRISHNAN,
RETD. POST MASTER (HSG-I), ADUR HPO, RESIDING AT
ANOOP NIVAS, PANNIVIZHA, ADUR-691 523
6 N. SAROJINI AMMA
RETD. SUB POSTMASTER, (HSG-I), MAYITHARA MARKET,
RESIDING AT CMC 14, MARUTHURVATTOM, CHERTHALA-688
524
7 A.S. RAMACHANDRAN,
RETD. DEPUTY POSTMASTER (HSG-I), ALAPPUZHA HPO,
RESIDING AT SANKARAMANIKYAM, CMC 10, CHERTHALA-688
524
8 R. SANKARA WARRIER
RETD. POST MASTER (HSG-I) ALUVA HPO, RESIDING AT
THEKKEWARRIAM, THAKAZHY-688 562
9 T.K. RAGHAVAN NAIR
RETD. POSTMASTER (HSG-I), ALAPPUZHA HPO, RESIDING
AT PUTHENPURACKAL HOUSE, KAROOR, AMBALAPUZHA-688
561
10 CJ. RAJA
RETD. POST MASTER (HSG-I), ALAPPUZHA HPO, RESIDING
AT NAZIM MANZIL, LAJANATH WARD, ALAPPUZHA-688 001
11 R. RAMASWAMY
RETD. POSTMASTER (HSG-I), NEYYATTINKARA HPO,
RESIDING AT T.C. 23/64, RAGOM, NANDAVANAM STREET,
VALIYASALAI, THIRUVANANTHAPURAM-695 036
12 K. AHALIA BAI
(W/O. MOHANLAL PAI, RETD. POST MASTER (HSG-I),
ALAPPUZHA), RESIDING AT REVATHI, ANPURAM,
ALAPPUZHA-688 011
OP(CAT).60/19 3
13 GEETHA NARAYANAN,
(W/O. V. NARAYANAN, RETD. ASST. ACCOUNTS OFFICER, P
AND T AUDIT, THIRUVANANTHAPURAM),RESIDING AT
SREEKRIPA, TIRUMALABHAGOM-688 540
14 B. CHANDRIKA DEVI AMMA
(W/O. P. CHANDRASEKHARAN PILLAI, RETD.
SUPERINTENDENT OF POST OFFICES, IRINJALAKKUDA
DIVISION), RESIDING AT SAI JYOTHI, KOONAYIL,
PARAVUR-691 301
R1-3, R5, R8-10, R12-13 BY ADV. SRI.V.MADHUSUDHANAN
R1-3, R5, R8-10, R12-13 BY ADV. SRI.B.UNNIKRISHNA
KAIMAL
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 26.11.2019, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(CAT).60/19 4
K.VINOD CHANDRAN & V.G.ARUN, JJ.
-----------------------------------------------
OP(CAT).No.60 of 2019
-----------------------------------------------
Dated this the 26th day of November, 2019
JUDGMENT
Arun, J.
The Union of India and its officials are aggrieved by
Exhibit P5 order of the Central Administrative Tribunal,
Ernakulam Bench in O.A.No.52 of 2017.
2. The issue projected in the original application
pertained to the entitlement for revision of pension and
other terminal benefits of the retired Central Government
employees pursuant to the recommendations of the VIth
Central Pay Commission. As per Annexure A2(as marked in
the original application), revision of pension in accordance
with the VIth CPC recommendation was approved and
implemented with effect from 1.6.2006.
3. Applicants 1 to 11 are persons who had retired prior
to 1.1.2006, while working as Postmasters/Deputy
Postmasters in the Higher Selection Grade-1(HSG-1).
OP(CAT).60/19 5
Applicants 12 to 14 are widows of pre-2006 pensioners. The
husbands of applicant Nos.12,13 and 14 had retired as
Postmaster (Higher Selection Grade-I), Assistant Accounts
Officer (P&T Audit) and Superintendent respectively. The
pension/family pension of pre-2006 retirees was revised as
per Annexure A3 O.M dated 1.9.2008. Clause 4.2 of
Annexure A3 reads as follows;
“4.2 The fixation of pension will be subject to
the provision that the revised pension, in no case,
shall be lower than fifty percent of the minimum of
the pay in the pay band plus the grade pay
corresponding to the pre-revised pay scale from
which the pensioner had retired. In the case of
HAG+ and above scales, this will be fifty percent of
the minimum of the revised pay scale.”
After implementation of the 6th CPC recommendations, the
pre-revised pay scale from which the applicants had retired
was upgraded and the pay structure revised, in terms of the
CCS (Revised Pay) Rules, 2008. Majority of the pensioners,
including the applicants, sought re-fixation of pension with
reference to the upgraded scale of pay, on the premise that
the revised consolidated pension of pre-2006 pensioners
OP(CAT).60/19 6
should not be lower than 50% of the minimum upgraded pay
in the pay band and the grade pay of the post from which
the pensioner had retired. The demand was turned down as
per Annexure A4 dated 11.2.2009, the relevant portion of
which reads as follows;
“4. The Table in Annexure-1 of this
Department's OM dated 14.10.2008 is based on the
CCS (Revised Rules), 2008 which are applicable to
the employees in the service as on 1.1.2006 and no
dispensation in this regard can be made in respect of
pre-2008 pensioners for the purpose of application of
the provision of Para 4.2 of this Department's OM
dated 1.9.2008.
5. In accordance with the instructions contained
in para 4.2 of this Department's OM of even number
dated 1.9.2008, the fixation of pension will be
subject to the provision that the revised pension, in
no case, shall be lower than fifty percent of the
minimum of the pay in the pay band plus the grade
pay corresponding to the pre-revised pay scale from
which the pensioner had retired. Therefore, the
benefit of upgradation of posts subsequent to their
retirement would not be admissible to the pre-2006
pensioners in this regard.”
4. Annexure A4 was successfully challenged before the
Principal Bench of the Central Administrative Tribunal by
OP(CAT).60/19 7
some of the pre-2006 pensioners, resulting in Annexure A5
order. The Tribunal quashed Annexure A4 and directed to
refix the pension of all pre-2006 retirees with effect from
1.6.2006 based on Annexure A2 resolution and in the light of
the observations in the Tribunal's order. The order of the
Tribunal was challenged unsuccessfully by the Government
before the High Court of Delhi and an SLP filed against that
judgment was dismissed by the Honourable Supreme Court.
The applicants claimed the benefit of Annexure A5 order of
the Principal Bench. In support of their claim, the applicants
relied on the decisions of the CAT, Principal Bench in
O.A.No.655 of 2010 and that of the Ernakulam Bench in
O.A.No.526 of 2016, wherein the Tribunal held the applicants
therein to be entitled for revised pension in terms of
paragraph 4.2 of O.M dated 1.9.2008 or 50% of the
minimum pay in the upgraded pay scale and corresponding
revised pay band, whichever is beneficial. The claim of the
applicants was turned down by the Government, whereupon
the original application was filed.
5. The order impugned in this original petition was
OP(CAT).60/19 8
rendered by the Tribunal relying on its order in O.A.No.526
of 2016. The operative part of the impugned order reads as
follows:
“12. Accordingly, the Original Application is
disposed of holding that the applicants are entitled to
a revised pension in terms of paragraph 4.2 of OM
dated 1.9.2008 or 50% of the minimum pay in the
pay band of Rs.9.300-34,800/- with Grade Pay of
Rs.4,600/- (in case of applicants 1 to 12) &
Rs.4,800/- (in the case of applicants 13 & 14) or as
per Annexure A4 fitment table, whichever is
beneficial to the applicants. Accordingly, the
respondents are directed to issue revised Pension
Payment Order in terms of what is stated above
within a period of two months from the date of
receipt of a copy of this order. No costs.”
6. When the matter was taken up for consideration
today, the learned Central Government Counsel submitted
that the challenge raised in the original petition cannot
survive in view of the judgment of this Court in
O.P(CAT).No.277 of 2017 and connected cases.
O.P(CAT).No.277 of 2017 was filed against the order of the
Tribunal in O. A. No.526 of 2016 and connected cases. In
OP(CAT).60/19 9
OP(CAT).No.277 of 2017 and connected cases, a Division
Bench of this court dealt with the same question, as to
whether the pension of pre-2006 retirees is to be revised,
based on the up-gradation and re-fixation of pay scale of
the post from which he/she had retired. The question was
considered in the light of the decision of the Honourable
Supreme Court in Krishnaswamy and Others v. Union of
India and Another [(2007) 2 SCC (L&s) 491]. The Division
Bench observed that the Principal Bench of the Tribunal,
while setting aside Annexure A4 had failed to take note of
the dictum in Krishnaswamy's case (supra) and hence
the order was rendered per incurium. After elaborate
consideration, the Division Bench answered the question in
the following manner:
“37. Therefore, the question is what was the
legally sustainable contention and supporting material
available to uphold the claim of the respondent for
the grade pay of Rs.4600/- ? Evidently, the Tribunal
accepted the contention of the respondent herein/the
applicant that in view of the decision of this Court in
O.P. (CAT)No.169/2015, the computation of pension
based on the decision of implementation on the
OP(CAT).60/19 10
recommendations of the VIth CPC has to be 50% of
the pay scale with respect to the scale of pay
applicable to the post in question and not the
corresponding pre-revised scale of pay from which
the pensioner had retired. This is evident from the
recital in paragraph 8 of the impugned order which
would reveal that the contention of the respondent
herein that as per the VIth CPC the revised pay scale
of Postmaster HSG-I is Rs.9300-34,800 with Grade
Pay of Rs.4,600/- with effect from 1.1.2006 was
taken into account by the Tribunal for holding that
though the respondent herein had retired from
service in the pay scale of Rs.6,500-10,500/-, on
account of his promotion as HSG-I after his
retirement the pay scale applicable to HSG-I at the
time of his retirement should be his pre-revised pay
in terms of paragraph 4.2 of O.M. dated 1.9.2008.
Since the corresponding revised pay of Deputy
Postmaster HSG-I after the VIth CPC was Rs.9,300-
34,800/- with Grade Pay of Rs.4,600/- with effect
from 1.1.2006 his pension has to be fixed as 50% of
the minimum pay in the pay band of Rs.9,300-
34,800/- plus Grade Pay of Rs.4,600/- or as per the
minimum pay in the pay band of Rs.9,300-34,800/-
plus grade pay of Rs.4,600/- as per the fitment table,
whichever is more beneficial to the petitioner. Thus, it
is obvious that virtually, the reason for holding that
the respondent herein is entitled to a revised pension
OP(CAT).60/19 11
of 50% of the minimum pay in the pay band of
Rs.9300- 34,800/- with Grade Pay of Rs.4,600/- is
that it is the scale of pay, in fact, pay band applicable
to the post of Deputy Postmaster. This finding is, no
doubt, in conflict with the binding decision in
Krishnaswamy's case (Supra). We have already
found that the decision in O.P.(CAT)No.169/2015 was
rendered without referring to the decision of the Apex
Court in Krishnaswamy's case (supra). In such
circumstances, in the light of the decision in
Krishnaswamy's case (supra) and
Sethumadhavan's case (supra), the said direction
cannot be sustained. In short, in view of the factual
matrix obtained in this case, the respondent is
entitled only to the grade pay of Rs.4,200/- which is
the normal replacement pay structure Grade Pay and
he cannot, as a matter of right, claim Rs.4,600/- as
Grade Pay for the purpose of calculating his revised
pension based on the decision in implementing the
recommendations of the VIth CPC. Hence, the
calculation of revised pension as per VIth CPC
corresponding to the pre-revised pay scale from
which he retired can be taken only as Rs.9300-
34,800 + G.P. Rs.4200/-, based on para 4.2 of O.M.
dated 1.9.2008 can only be Rs.6750/-. At the same
time, calculation of revised pension as per para 4.1 of
O.M. dated 1.9.2008 is Rs.8842/-. The respondent
was not able to establish that he is entitled to get
OP(CAT).60/19 12
Rs.9,230/- w.e.f. 1.1.2006. As regards the first
prayer of the respondent in O.A.No.526/2016 for a
declaration that he is entitled to revised pension
based on the pay band plus grade applicable to HSG-I
w.e.f. 1.1.2006, we have already found the prayer is
impermissible to be granted in view of the decision in
Krishnaswamy's case (supra). In short, the
respondent herein/the applicant is entitled to get
Rs.8842/- only as his revised pension. The
respondent did not have a case that the calculation of
his revised pension, as mentioned in the O.P., in
terms of para 4.1 of O.M. dated 1.9.2008 or that it is
below the amount of revised pension grantable in
terms of para 4.2 of O.M. dated 1.9.2008. The upshot
of the discussion is that the respondent herein/the
applicant is entitled to the reliefs sought for in the
Original Application and therefore, the impugned
order calls for interference. In the result, this O.P. is
allowed and the impugned order in O.A.No.526/2016
is set aside. As a necessary sequel, the said O.A. will
stand dismissed.”
Based on its findings, the Division Bench allowed the original
petitions upholding the challenge against the order in
O.A.No.526 of 2016. The impugned order of the Tribunal in
the instant case is based entirely on the order in O.A.No.526
of 2016.
OP(CAT).60/19 13
7. We are in respectful agreement with the findings in
O.P(CAT).No.198 of 2017 and connected cases. An upgradation
and revision, in the pay scale of the post from
which the pensioners had retired, will not entail in revision of
their pension, the revision of pension being dependent on
revision of the pay scale, as it stood, at the time of their
retirement. Hence, the order of the Tribunal, which holds
otherwise, is liable to be interfered with.
In the result, the original petition is allowed, the
impugned order is set aside and the original application is
dismissed. No order as to costs.
Sd/-
K.VINOD CHANDRAN
JUDGE
Sd/-
V.G.ARUN
JUDGE
vgsx
OP(CAT).60/19 14
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORIGINAL APPLICATION IN
O.A. NO. 180/00052/2017 DATED 14.01.2017
FILED BY THE RESPONDENTS.
EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT IN O.A.
NO. 180/00052/2017, DATED 06.10.2017
FILED BY THE PETITIONERS
EXHIBIT P3 TRUE COPY OF THE REJOINDER IN O.A. O.
180/00052/2017, DATED 04.11.2017 FILED
BY THE RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE ADDITIONAL REPLY
STATEMENT IN O.A. NO. 180/00052/2017,
DATED 15.05.2018 FILED BY THE
PETITIONERS.ishnaswamy's case (supra). In short, the
respondent herein/the applicant is entitled to get
Rs.8842/- only as his revised pension. The
respondent did not have a case that the calculation of
his revised pension, as mentioned in the O.P., in
terms of para 4.1 of O.M. dated 1.9.2008 or that it is
below the amount of revised pension grantable in
terms of para 4.2 of O.M. dated 1.9.2008. The upshot
of the discussion is that the respondent herein/the
applicant is entitled to the reliefs sought for in the
Original Application and therefore, the impugned
order calls for interference. In the result, this O.P. is
allowed and the impugned order in O.A.No.526/2016
is set aside. As a necessary sequel, the said O.A. will
stand dismissed.”
Based on its findings, the Division Bench allowed the original
petitions upholding the challenge against the order in
O.A.No.526 of 2016. The impugned order of the Tribunal in
the instant case is based entirely on the order in O.A.No.526
of 2016.
OP(CAT).60/19 13
7. We are in respectful agreement with the findings in O.P(CAT).No.198 of 2017 and connected cases. An upgradation and revision, in the pay scale of the post from which the pensioners had retired, will not entail in revision of their pension, the revision of pension being dependent on
revision of the pay scale, as it stood, at the time of their retirement. Hence, the order of the Tribunal, which holds otherwise, is liable to be interfered with.In the result, the original petition is allowed, the
impugned order is set aside and the original application is dismissed. No order as to costs.
Sd/-
K.VINOD CHANDRAN
JUDGE
Sd/-
V.G.ARUN
JUDGE
vgsx
OP(CAT).60/19 14
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