This High Court dismissed petitions seeking higher pensions for retired postal and excise officials. The court held that pension revision is based on the pay scale from which the pensioner retired, ruling that post up-gradations after retirement do not entitle pensioners to higher benefits under the VIth CPC.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
THURSDAY, THE 07TH DAY OF NOVEMBER 2019 / 16TH KARTHIKA, 1941
OP (CAT).No.2442 OF 2013(Z)
PETITIONER/S:
M.G.VENUGOPALAN
MEMBER (RETD), CENTRAL BOARD OF EXCISE & CUSTOMS 'SREEPADAM', MAMANGALAM, COCHIN-682 025.
BY ADVS.
SRI.C.S.GOPALAKRISHNAN NAIR SMT.CHANDINI G.NAIR
RESPONDENT/S:
5 THE SENIOR MANAGER DENA BANK, NAPEANSEA ROAD BRANCH, SWAPNALOK, L.J.MARG, MUMBAI - 400 026.
R1 BY SRI.P.PARAMESWARAN NAIR,ASG OF INDIA R1-4 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA R5 BY ADV. SRI.ROJO J.THURUTHIPARA
OP(CAT).2442/13 & 2/15
2
OTHER PRESENT:
SRI.T.V.VINU
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 07.11.2019, ALONG WITH OP (CAT).2/2015(Z), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(CAT).2442/13 & 2/15
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
THURSDAY, THE 07TH DAY OF NOVEMBER 2019 / 16TH KARTHIKA, 1941
OP (CAT).No.2 OF 2015
AGAINST THE ORDER/JUDGMENT IN OA 180/2014 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH
PETITIONER/S:
C.P.THOMAS AGED 80 YEARS MEMBER(RETD),DEPARTMENT OF POSTS,ID,KATTIKARAN TOWERS,COCHIN 682 018
BY ADVS.
SRI.C.S.GOPALAKRISHNAN NAIR SMT.CHANDINI G.NAIR
RESPONDENT/S:
OP(CAT).2442/13 & 2/15
4
4 THE POST MASTER HEAD POST OFFICE,ERNAKULAM COCHIN 682 011
R1-4 BY ASSISTANT SOLICITOR GENERAL
R1-4 BY SRI.T.V.VINU, CGC
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 07.11.2019, ALONG WITH OP (CAT).2442/2013(Z), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(CAT).2442/13 & 2/15
5
“C.R”
K.VINOD CHANDRAN & V.G.ARUN, JJ.
OP(CAT).No. 2442 of 2013 & OP(CAT).No.2 of 2015
Dated this the 7th day of November, 2019
JUDGMENT
Arun, J.
The applicants before the Central Administrative Tribunal in O.A.Nos.297 of 2012 and 157 of 2014 are the petitioners in O.P(CAT).Nos.2442 of 2013 and 2 of 2015 respectively. The essential facts necessary for adjudication of the issue canvassed in these original petitions are narrated hereunder, with reference to the parties and the exhibits as in the original applications;
The applicant in O.A.No.157 of 2014 retired as Member, Postal Board on 30.6.1992. Based on the recommendations of the 6th Central Pay Commission (CPC), the pay scale of Member, Postal Board was revised to the Higher Administrative Grade plus (HAG+) scale of Rs.75500-80000, with effect from 1.1.2006. Accordingly, the applicant's pension was revised to Rs.37,750/-. Later, as per Annexure 4 dated 24.2.2014, the pension of the
6
OP(CAT).2442/13 & 2/15
applicant was re-fixed as Rs.33,500/-. The reason for such revision and reduction of pension was that the applicant had retired from the scale of Rs.7300-7600, the corresponding revised scale of which was Rs.67000-79000, as on 1.1.2006. That, in terms of Paragraph 4.2 of the Department of Pen & Pensioners welfare O.M.No.38/37/08-P&Pen(A) dated 1.9.2008, pension is to be revised, corresponding to the pre-revised scale of pay from which the pensioner had retired. This position was confirmed vide O.M.No.38/37/08-P&Pen(A) dated 28.1.2013 issued by the Department of Pension and Pensioners Welfare. Aggrieved, the applicant approached the Tribunal seeking to set aside Annexure A4 and for a declaration that he is entitled to 50% of the revised pay of the Member, Department of Posts as pension with effect from 1.1.2006.
OP(CAT).2442/13 & 2/15
7
consequently, the applicant's pension was refixed at Rs.37,750/with effect from 1.1.2006. With effect from 24.12.2008, the pay scale of Member, CBEC was up-graded to the apex scale of Rs.80000/-, applicable to the rank of Special Secretary to the Government of India. The applicant sought revision of his pension to Rs.40,000/- based on the up-gradation of pay scale of Member, CBEC with effect from 24.12.2008. His request in this regard having not been considered, the original application was filed seeking a declaration that the applicant is entitled for pension @ 50% of the pay of the Member, Central Board of Excise and Customs, with effect from 24.12.2008.
OP(CAT).2442/13 & 2/15
8
scale of pay Rs.22400-525-24500 and the corresponding 6th CPC pay scale is Rs.67000-79000. It was therefore held that the revised pension of the applicant would work out to Rs.33,500/and not Rs.37,750/-; ie: half of the last pay drawn or would have drawn in the revised scale. It was found that the applicant had failed to prove that the revised scale applicable to him is the HAG+ scale of Rs.75500-80000.
OP(CAT).2442/13 & 2/15
9
scale, the question of reckoning the minimum of that scale for fixing the revised pay scale of the petitioner does not arise. It was held that the term 'up-gradation' implies increase in pay and rank whereas the term 'revision' implies examination and correction or change, which can be upward or downward.
OP(CAT).2442/13 & 2/15
10
revision of pay scale of pensioners are dependent on the revision of pay scale of the post from which the pensioner had retired and not the pay scale at the time of his/her retirement. Otherwise it would lead to an anomalous situation where, based on the date of retirement, varied pension is drawn by pensioners, who had retired from the same post. Reliance is placed on the decision of the Honourable Supreme Court in State of Punjab and others Vs Rafiq Masih [(2015) 4 SCC 334] to contend that in the case of the petitioner in O.P.CAT 2 of 2015 the pension granted was subsequently reduced and recovery effected, which action is opposed to the principles laid down by the Apex Court.
K.S.Krishnaswamy and Others v. Union of India and
Another [(2007) 2 SCC (L&s) 491], and Annexure A10 judgment was rendered without taking note of that decision. It is submitted that a Division Bench of this Court in OP(CAT).No.198 of 2017 and connected cases had considered the same question in the context of the 6th CPC itself and had ruled against the pensioners.
OP(CAT).2442/13 & 2/15
11
Division Bench judgment in OP(CAT).No.198 of 2017 and connected cases, it is only appropriate to consider that judgment. In OP(CAT).No.198 of 2017 and connected cases, after extracting paragraphs 4.1 and 4.2 of O.M dated 1.9.2008, the Division Bench held as follows:
“Thus, a scanning of paras 4.1 and 4.2 of the said O.M. dated 1.9.2008 will reveal that the consolidated pension/family pension has to be worked out in accordance with the provisions under para 4.1 and para 4.2 is there to ensure that the fixation of the revised pension/family pension shall not be lower than 50% 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, it will be 50% of the minimum of the revised pay scale. Thus, it is evident on computing the revised pension the pre-2006 pensioners would be entitled to get the higher among the amount on working it out in accordance with para 4.1 and para 4.2 and at any rate, they would get an amount as worked out in accordance with para 4.2 as the minimum revised pension. In the light of the unambiguous provision under para 4.2 of the said O.M., there can be no doubt with respect to the mode of calculation of the minimum assured revised pension. The words 'corresponding to the pre-revised pay scale from which the pensioner had retired' invite no further interpretation especially in the light of the decision in
OP(CAT).2442/13 & 2/15
12
Krishnaswamy 's case (supra). As already noticed, the Apex Court in Krishnaswamy's case held that an increase in the pay scale in any recommendation of a Pay Commission is a corresponding increase in the pay scale and not of the post. The Apex Court has also made it very clear that recommendations of the Pay Commission are subject to the acceptance/rejection with modification of the appropriate Government. Hence, when O.M. dated 1.9.2008 provides for taking into account 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 there can be no way to take '50% of minimum of the pay band plus the grade pay with respect to the scale of pay applicable to the post in question' and it can only be what is specifically provided thereunder viz., '50% of the minimum of the pay band plus grade pay corresponding to the pre-revised pay scale from which the pensioner had retired'.”
Ultimately, the Division Bench encapsulated the question and answered it as follows:
“ 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 recommendations of the VIth CPC
OP(CAT).2442/13 & 2/15
13
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 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
OP(CAT).2442/13 & 2/15
14
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 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
OP(CAT).2442/13 & 2/15
15
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.”
decision of the Apex Court in K.S.Krishnaswamy , the Division Bench proceeded to hold that revision of pension is based on the scale of pay at which the pensioner had retired and not on upgradation of the post from which he/she had retired. The Division Bench further found that Annexure A10 decision of the Principal Bench in O.A.NO.655 of 2010 and connected cases was rendered without reference to the decision in Krishnaswamy's case , and therefore rendered per incuriam.
OP(CAT).2442/13 & 2/15
16
corresponding to the pre-revised pay scale from which the pensioner had retired and not corresponding to the up-graded pay scale of the post from which the pensioner had retired. Therefore, any up-gradation and revision of pay scale brought about to the post from which the petitioners had retired, will not result in the revision of their pension, which is dependent on revision of the pay scale, from which the petitioners had retired.
OP(CAT).2442/13 & 2/15
17
of more than five years. The other situations cited in Rafiq
Masih are also not attracted. The recovery is definitely not iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover. The issue in OP(CAT).No. 2 of 2015 is only of correction of a mistake committed, on the basis of a wrong computation made at the instance of the petitioner.
No order as to costs.
Sd/-
K.VINOD CHANDRAN JUDGE
Sd/-
V.G.ARUN JUDGE
vgs x
OP(CAT).2442/13 & 2/15
18
APPENDIX OF OP (CAT) 2442/2013
PETITIONER'S/S EXHIBITS:
| ANNEXURE A1 | TRUE COPY OF THE OM F.NO.38/37/08P&PW(A) PT.1 DATED 14/10/08 ISSUED BY THE 2ND RESPONDENT. |
|---|---|
| ANNEXURE A2 | TRUE COPY OF THE LETTER DATED 06/11/2008 SENT TO THE 5TH RESPONDENT. |
| ANNEXURE A3 | TRUE COPY OF THE ORDER NO.1/2009 DATED 01/01/2009 ISSUED BY THE 1ST RESPONDENT. |
| ANNEXURE A4 | TRUE COPY OF LETTER DATED 22/01/2009 SENT TO THE 5TH RESPONDENT. |
| ANNEXURE A5 | TRUE COPY OF OM F.NO.38/37/08 P&PW(A) DATED 11/02/2009 ISSUED BY THE 2ND RESPONDENT. |
| ANNEXURE A6 | TRUE COPY OF THE LETTER DATED 31/03/2011 ADDRESSED TO THE DIRECTOR (HQRS. ADMN) DEPARTMENT OF REVENUE. |
| ANNEXURE A7 | TRUE COPY OF THE LETTER DATED 05/10/2011 SENT TO THE 4TH RESPONDENT. |
| ANNEXURE A8 | TRUE COPY OF THE LETTER DATED 07/02/2012 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT. |
| ANNEXURE A9 | TRUE COPY OF THE AUTHORIZATION DATED 26/03/2012. |
| ANNEXURE A10 | TRUE COPY OF THE ORDER DATED 01/11/2011 IN OA NO.0655/2010 AND CONNECTED CASES. |
| ANNEXURE A11 | TRUE COPY OF THE ORDER DATED 24/07/2007 IN OA NO.561/2006. |
| EXHIBIT P1 | TRUE COPY OF THE ORDER IN OA.NO.597/2012 DT.6-6-2013 |
| EXHIBIT P2 | TRUE COPY OF THE RESOLUTION NO.38/37/O- P&PW(A) DT.1-9-2008 |
| EXHIBIT P3 | TRUE COPY OF THE OM NO.F.NO.38/37/O-P&PW(A) DT.1-9-2008 |
OP(CAT).2442/13 & 2/15
19
EXHIBIT P4 TRUE COPY OF THE CENTRAL BOARD OF EXCISE AND CUSTOMS(CHAIRMAN & MEMBERS) RECRUITMENT RULES, 2006 DT.2-2-2006 EXHIBIT P5 TRUE COPY OF THE CENTRAL BOARD OF EXCISE AND CUSTOMS(CHAIRMAN & MEMBERS) RECRUITMENT AMENDMENT RULES, 2012 DT.30-5-2012. EXHIBIT P6 PHOTOCOPY OF OA.NO.597/2012 FILED BY THE PETITIONER BEFORE THE HON'BLE CAT, ERNAKULAM BENCH. EXHIBIT P7 TRUE COPY OF THE REPLY STATEMENT FILED IN OA.597/2012 EXHIBIT P8 TRUE COPY OF THE REJOINDER IN OA.597/2012
OP(CAT).2442/13 & 2/15
20
APPENDIX OF OP (CAT) 2/2015
PETITIONER'S/S EXHIBITS:
| ANNEXURE A4 | TRUE COPY OF ORDER NO.8144/PEN/GENL./PPO 6040/IPS/TVM DATED 24/02/2014 ISSUED BY THE 3RD RESPONDENT. |
|---|---|
| ANNEXURE A1 | TRUE COPY OF LETTER DATED 30/06/1992 TO THE 2ND RESPONDENT. |
| ANNEXURE A2 | TRUE CPY OF PENSION PAYMENT ORDER (PPO) NO. 60901LPS/TVM. |
| ANNEXURE A3 | TRUE COPY OF THE FITMENT TABLE ANNEXED TO CCS (RP) RULES. |
| ANNEXURE R1 | F. NO.38/37/08-P&PW(A) DATED 1/09/08. |
| ANNEXURE R2 | NO.33-16/2008-PA9 PE(A) DATED 29/09/2008. |
| ANNEXURE R3 | NO.38-37/08-PW(A) DATED 14/10/08. |
| ANNEXURE R4 | NO.38-37/08-PW(A) DATED 20/08/09. |
| ANNEXURE R5 | NO.38-37/08-PW(A) DATED 28/01/2013. |
| ANNEXURE R6 | NO.38-37/08-PW(A) DATED 13/02/2013. |
| ANNEXURE R7 | NO.38-37/08-PW(A) DATED 03/10/08. |
| ANNEXURE R8 | NO.52-133/99/PA(PEA) D-2011 DATED 29/01/2014.. |
| ANNEXURE R9 | NO.8144/PEN/GENL/PPO 6040/IPS/TVM DATED 24/02/2014. |
| EXHIBIT P1 | PHOTO COPY OF OA NO 180/00157/2014 FILED BY THE PETITIONER BEFORE THE HON'BLE CAT,ERNAKULAM BENCH. |
| EXHIBIT P2 | TRUE COPY OF THE REPLY STATEMENT F NO 38/37/08-P & PW(A) 1-9-08. |
| EXHIBIT P3 | TRUE COPY OF THE REJOINDER. |
| EXHIBIT P4 | TRUE COPY OF THE ADDITIONAL REPLY STATEMENT. |
OP(CAT).2442/13 & 2/15
21
EXHIBIT P5 PHOTOCOPY OF THE ABOVE ORDER IN OA 180/00157/2014.
EXHIBIT P6 PHOTO COPY OF THE ABOVE ORDER DT 9-12-2014 IN RA NO 30/2014.
3 issues framed by the court
Whether revision of pension is dependent on the revised pay scale at which the post was situated at the time of retirement or the pay scale from which the pensioner had retired.
Whether up-gradation of a post after retirement can form the basis for revision of pension granted under the VIth Central Pay Commission.
Whether the PNB v. Rafiq Masih decision applies to cases involving reduction of pension based on recruitment rules post-retirement.
Colour shows how this judgement treated each authority
State of Punjab and others Vs Rafiq MasihReferred¶77
State of Punjab and others Vs Rafiq Masih [(2015) 4 SCC 334] · Who else cites this
K.S.Krishnaswamy and Others v. Union of India and AnotherRelied on¶81
K.S.Krishnaswamy and Others v. Union of India and Another [(2007) 2 SCC (L&s) 491] · Who else cites this
Sethumadhavan's caseRelied on¶98
Sethumadhavan's case
2 provisions across 1 enactments
M.G.VENUGOPALAN
C.P.THOMAS
UNION OF INDIA
SECRETARY TO THE GOVERNMENT OF INDIA DEPARTMENT OF PENSION AND PENSIONERS' WELFARE
PAY AND ACCOUNTS OFFICER DEPARTMENT OF REVENUE
THE SENIOR MANAGER DENA BANK
K.VINOD CHANDRAN
V.G.ARUN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
