Director of Accounts (Postal), Kerala Circle, Trivandrum; Chief Postmaster General, Kerala Circle, Trivandrum; Union of India represented by its Secretary, Department of Pension and Pensioners Welfare, Lok Nayak Bhavan, Khan Market, New Delhi v. K.P. Damodaran Nair

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 29TH DAY OF NOVEMBER 2019 / 8TH AGRAHAYANA, 1941** **OP (CAT).No.215 OF 2019** **AGAINST THE ORDER/JUDGMENT IN OA 797/2017 DATED 03-01-2019 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONER/S:** **1 DIRECTOR OF ACCOUNTS (POSTAL) KERALA CIRCLE, TRIVANDRUM - 695 001 2 CHIEF POSTMASTER GENERAL KERALA CIRCLE, TRIVANDRUM - 695 033 3 UNION OF INDIA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF PENSION AND PENSIONER'S WELFARE, LOKNAYAK BHAVAN, KHAN MARKET, NEW DELHI - 110 001** **BY ADV. SRI.P.VIJAYAKUMAR** ## **RESPONDENT/S:** **K.P.DAMODARAN NAIR, S/O V V KRISHNAN NAIR, POST MASTER (HSG 1) (RETD), ASHWATHY, KINATHIL P.O., UDINUR, TRIKKARIPUR, KASARAGOD DIST - 671 349** **R1 BY ADV. SRI.C.S.GOPALAKRISHNAN NAIR** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 29.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _**OP(CAT).215/19**_ 2 ## **K.VINOD CHANDRAN & V.G.ARUN, JJ.** ----------------------------------------------- OP(CAT).No.215 of 2019 ----------------------------------------------Dated this the 29[th] 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.797 of 2017. 2. The issue projected in the original application pertained to the entitlement for revision of pension and other terminal benefits of the applicant, a retired Central Government employee, based on the recommendations of the VI[th] Central Pay Commission. The revision of pension in accordance with the VI[th] CPC recommendation was approved and implemented with effect from 1.6.2006. 3. The applicant retired as Postmaster (HSG-I) on 30.4.2002, from the pay scale, Rs.6500-10500. On implementation of the VI[th] CPC, the pay scale of HSG-I was upgraded to Rs.7500-11500 and revised to Pay Band-II with Grade Pay of Rs.4600/-. The pension/family pension of pre-2006 retirees was revised as per O.M F.No.38/37/08-P& PW(A) dated _**OP(CAT).215/19**_ 3 ## 1.9.2008. Clause 4.2 of the O.M 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 prerevised 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.”_ 4. After implementation of the VI[th] CPC recommendations, the pre-revised pay scale from which the applicant had retired was upgraded and the pay structure revised, in terms of the CCS (Revised Pay) Rules, 2008. The pay of Postmaster (HSG-I) was revised to Rs.9300-34800 with a Grade Pay of Rs.4600/-. The applicant 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 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 not considered and hence the original application was filed seeking the following reliefs: _“i. To declare that the applicant is entitled for revision of pension based on the pay band plus grade pay applicable to HSG I w.e.f.1.1.2006 i.e., to Rs.9230/-._ _**OP(CAT).215/19**_ 4 _ii. To direct the respondents to issue revised PPO to the applicant specifying the pension on the basis of 50% of the minimum of the pay in the pay band plus grade pay of Rs.18460/- i.e. Rs.9,230/- w.e.f.1.1.2006 and also the corresponding family pension and grant all consequential benefits including arrears of pension within a stipulated period.”_ 5. The demand for revision of pension raised by similarly situated pensioners had been turned down by OM.F.No.38/37/08P&PW(A) 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 prerevised 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-_ _**OP(CAT).215/19**_ 5 _2006 pensioners in this regard.”_ The O.M dated 11.2.2009 was successfully challenged before the Principal Bench of the Central Administrative Tribunal by some of the pre-2006 pensioners. The Tribunal directed to refix the pension of all pre-2006 retirees with effect from 1.6.2006 based on the up-gradation brought about in the pay scale under the CCS (RP) Rules, 2008 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 applicant claimed the benefit of the order of the Principal Bench. In support of his claim, the applicant relied on the decisions of the CAT, Principal Bench in O.A.No.655 of 2010, as upheld by the Delhi High Court and that of the Ernakulam Bench in O.A.No.526 of 2016, as also the judgment of this Court in OP(CAT).169 of 2015. In O.A.No.526 of 2016, the Tribunal had held the applicant 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 order impugned in this original petition was rendered by the _**OP(CAT).215/19**_ 6 Tribunal relying on its order in O.A.No.526 of 2016. The operative part of the impugned order reads as follows: _“6. ...Perused all the documents, oral and documentary. The case of the applicant is identical to O.A.No.180/526/2016. Hence this Tribunal has no hesitation to hold that the said order squarely covers the field. The O.A is therefore allowed. The applicant is entitled for revision of pension of 50% of the minimum of the pay in the pay band plus grade pay of Rs.18460/- ie. Rs.9230/- with effect from 1.1.2006 and also the corresponding family pension with all consequential benefits including arrears of pension arising therefrom. The respondents shall issue revised Pension Payment Order in terms of what is stated above.”_ 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).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 _**OP(CAT).215/19**_ 7 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 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_ _**OP(CAT).215/19**_ 8 _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 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_ _**OP(CAT).215/19**_ 9 _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 prerevised 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 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 _**OP(CAT).215/19**_ 10 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. 7. We are in respectful agreement with the findings in O.P(CAT).No.198 of 2017 and connected cases. An up-gradation 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).215/19**_ 11 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF OA NO. 180/00797/2017 FILED BY THE PETITIONER DATED 19.09.2017** **EXHIBIT-P1(A1) TRUE COPY OF THE PPO NO.9278/LPS/TVM (NAME : K.P.DAMODARAN NAIR)** - **EXHIBIT-P1(A2) TRUE COPY OF THE FITMENT TABLE ANNEXED TO CCS (RP) RULES, 2008** - **EXHIBIT-P1(A3) TRUE COPY OF THE ORDER DT. 16.8.2013 IN OA NO.715/2012 FILED BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** - **EXHIBIT-P1(A4) TRUE COPY OF THE ORDER IN RP NO.2565/2015 IN SLP NO.6567/2015 DT. 28.8.2015** - **EXHIBIT-P1(A5) TRUE COPY OF THE ORDER IN OA NO.526/2017 DT. 16.3.2017 FILED BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** - **EXHIBIT-P1(A6) TRUE COPY OF THE REPRESENTATION DATED 25.11.2016 SENT TO THE DIRECTOR OF ACCOUNTS (POSTAL)** - **EXHIBIT-P1(A7) TRUE COPY OF THE JUDGMENT IN OP (CAT) NO.169/2015 ISSUED BEFORE THE HON'BLE HIGH COURT OF KERALA** - **EXHIBIT-P1(A8) TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF DELHI IN RAMPHAL VS.UNIOON OF INDIA (WP(C)NO.3035/2016) DT. 3.8.2016** - **EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT IN OA NO.180/00797/2017 FILED BY THE PETITIONER DATED 30.07.2018** - **EXHIBIT-P2(A1) TRUE COPY OF THE OM NO. 38/37/08-P&PW(A) DATED 01.09.2008 ISSUED BY THE DEPARTMENT OF PENSION & PENSIONERS' WELFARE, NEW DELHI** - **EXHIBIT-P2(A2) TRUE COPY OF THE OM NO. 38/37/08-P &PW(A).PT. II DATED 03.10.2008 ISSUED BY THE DEPARTMENT OF PENSION & PENSIONERS' WELFARE, NEW DELHI** - **EXHIBIT-P2(A3) TRUE COPY OF THE OM NO. 38/37/08-P&PW(A)PT. I DATED 14.10.2008 ISSUED BY THE DEPARTMENT** _**OP(CAT).215/19**_ 12 ## **OF PENSION & PENSIONERS' WELFARE, NEW DELHI** **EXHIBIT-P2(A4)** **TRUE COPY OF THE O.M NO.38/37/08-P&PW(A) PT. I DATED 20.08.2009 ISSUED BY THE DEPARTMENT OF PENSION & PENSIONERS' WELFARE, NEW DELHI** **EXHIBIT -P2(A6)** **TRUE COPY OF THE OM NO.38/37/08-P&PW(A) PT. I DATED 21.08.2013 ISSUED BY THE DEPARTMENT OF PENSION & PENSIONERS' WELFARE, NEW DELHI** **EXHIBIT - P2(A7)** **TRUE COPY OF THE O.M NO.38/37/08-P&PW(A) PT. I DATED 13.02.2013 ISSUED BY THE DEPARTMENT OF PENSION & PENSIONERS' WELFARE, NEW DELHI** **EXHIBIT -P2(A8) TRUE COPY OF THE POSTAL DIRECTORATE LETTER NO. 26-17/13-PA (PEA) DATED 10.07.2013 ISSUED BY THE DIRECTOR** **EXHIBIT -P2(A9) TRUE COPY OF THE I.D. NOTE NO. 20/EV/2016 DATED 22.01.2016 ISSUED BY THE DEPARTMENT OF PENSION & PENSIONERS' WELFARE** - **EXHIBIT -P2(A10) TRUE COPY OF THE OM NO. 38/37/08-P&PW(A) DATED 06.04.2016 ISSUED BY THE DEPARTMENT OF PENSION & PENSIONERS' WELFARE,NEW DELHI** **EXHIBIT -P2(A11) TRUE COPY OF THE ORDER DATED 01.09.2016 IN OA bNO. 060/00912/2015 OF THIS HON'BLE TRIBUNAL** - **EXHIBIT -P2(A12)** **TRUE COPY OF DEPARTMENT OF EXPENDITURE ID NOTE NO. 1(9)/EV/2015 DATED 04.12.2015 ISSUED BY THE MINISTRY OF FINANCE** **EXHIBIT P3** **TRUE COPY OF THE ORDER IN O.A NO. 180/00797/2017 DATED 03.01.2019 ISSUED BY THE HON'BLE CAT, ERNAKULAM BENCH**