K. D. Joseph v. Union of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS FRIDAY, THE 4[TH] DAY OF MARCH 2022 / 13TH PHALGUNA, 1943** ## **WP(C) NO. 32808 OF 2018** ## **PETITIONERS:** 1 K.D. JOSEPH AGED 68 YEARS HEAD CONSTABLE, CISF (RETD), FORCE NO.714490397, KADAVIL HOUSE, THATHAMPALLY P.O., ALAPPUZHA, KERALA-688013. 2 *ADDL. P2 TRESIAMMA JOSEPH AGED 67 YEARS W/O K. D. JOSEPH, KADAVIL HOUSE, THATHAMPALLY P.O ALAPPUZHA, KERALA- 688013 *ADDL. P2 IS IMPLEADED IN THE WP(C) AS PER ORDER DATED 05-08-2021 IN I.A NO. 1/2021 IN THE WP(C) 32808 / 2018 BY ADV P.J.JOSEPH ## **RESPONDENTS:** 1 UNION OF INDIA REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, NORTH BLOCK, NEW DELHI-110003. 2 DIRECTOR GENERAL CENTRAL INDUSTRIAL SECURITY FORCE, BLOCK NO. 13, CGO COMPLEX, LODHI ROAD P.O., NEW DELHI 03 110003 3 PAY AND ACCOUNTS OFFICE, CISF MINISTRY OF HOME AFFAIRS, 5TH FLOOR, E-BLOCK, GPO COMPLEX , INA NEW DELHI110023 4 RPAO (CISF) KOLKATA, 3RD, M.S.O. BULD, CGO COMPLEX, DF BLOCK, D WING, 2ND FLR, SALT LAKE CITY, SECTOR-1, KOLKATA, W.P.(C)NO.32808/2018 2 700064 5 THE PAY AND ACCOUNTING OFFICER, CENTRAL PENSION ACCOUNTING OFICE, GOVERNMENT OF INDIA, TRIKOOT-2, BHIKAJI CAMA PLACE, NEW DELHI 110066 BY ADVS. ASSISTANT SOLICITOR GENERAL SMT.O.M.SHALINA, CGC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.10.2021, THE COURT ON 4/3/2022 DELIVERED THE FOLLOWING: W.P.(C)NO.32808/2018 3 ## **JUDGMENT** The petitioner joined the Central Industrial Security Force on 30/7/1971 as a guard and after putting in a qualifying service of 20 years and two months retired voluntarily on 30/9/1993. The pay scale of head constable at that time was Rs.1200-30-1800 and at the time of retirement, his average emoluments was Rs.1192/- and basic pension was Rs.488/- per month. Subsequently, there were few revisions. Consequent to recommendation of the 6[th] pay commission, it was directed at para 4.2. of the order that “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”. The 6[th] pay commission had recommended the revised scale of Rs.5200-20200 with grade pay of Rs. 2400/- to Head Constables in PB-1, with effect from 1/1/2006. The revised pension of the petitioner was fixed on pro -rata basis to Rs.3500/- per month by Ext.P3 order of the PPO dated 13/4/2012. Claiming that the revised pro-rata pension fixed in respect of the petitioner with effect from 1/1/2006 was Rs.3500/- per month and as per Ext.P2 fitment table, the minimum pay of Head constable with effect from 1/1/2006 was fixed at Rs.9840/- per month and as per Ext.P3 delinking order, the petitioner was entitled to get pension at the rate of Rs.4920/- per month, a representation was submitted as Ext.P5. Pursuant to Ext.P5 W.P.(C)NO.32808/2018 4 representation, by order dated 7/3/2018, the 3[rd] respondent revised the pension of the petitioner to Rs.4030/- per month with effect from 1/1/2006 taking the pay band of Rs.5200-20200 (6[th] PC) with grade pay of Rs.2000/-. According to the petitioner, the relief sought was to revise the pension to Rs.4920/- per month in pay band of Rs.5200-20200 with a grade pay of Rs.2400/-. Raising this anomaly, Ext.P8 representation was submitted which was rejected by Ext.P9 communication and Ext.P10 office memorandum dated 11/02/2009. 2. Aggrieved by the above, the petitioner has approached this court to quash Ext.P9 and para 5 of Ext.P10 dated 2/11/2009, to the extent directed that the benefit of up-gradation of post subsequent to the retirement would not be admissible to the pre-2006 pensioners. Further prayer sought was for a writ of mandamus or direction commanding the respondents to revise the pension of the petitioner with effect from 1/1/2006 to Rs.4920/- as basic pension. 3. Pending the proceedings, petitioner died and his wife was impleaded as the second petitioner by order in I.A. No.1/2021. 4. Respondents 1 to 5 filed a detailed counter affidavit traversing the various claims set up by the petitioner. It was stated that the revised pay scale in corresponding to the pre-revised scale of Rs.975-25-1150-30-1660 was Rs.320085-4900 ( S-6), with effect from 1/1/1996, under the 5[th] Central Pay Commission and Rs.5200-20200(PB-1) with grade pay Rs.2000/- with effect from 1/1/2006 under the 6[th] Central Pay Commission. Pay in the pay band plus grade pay corresponding to the pre-revised pay scale from which the petitioner had retired has been considered in revising his pension with effect from 1/1/2006. The revised W.P.(C)NO.32808/2018 5 pay scale corresponding to the pre revised scale of Rs.975-25-1150-30-1660 was Rs.3200-85-4900 (S-6) with effect from 1/1/1996 as per the 5[th] Central Pay Commission and not Rs.4000-100-8000 as contended by the petitioner. The revised pension has to be fixed as 50% of the minimum of pay in the pay band plus grade pay, corresponding to the pre-revised pay scale from which the petitioner had retired. 5. It was contended that at the time of drawing Ext.P3, the grade pay was taken as Rs.2400/- which was an inadvertent clerical mistake and the petitioner was not eligible for the same. This anomaly was rectified after issuance of OM dated 28/1/2013 which contained a concordance table giving the various pay scales of 4[th] and 5[th] CPC and the corresponding pay scale in the 6[th] CPC, along with the pension entitlement and the same was evident from Ext.P7 in which the modifications consequent upon the recommendation of 6[th] CPC was finally carried out. The clarificatory OMs issued there before had been set aside by the court order and hence the pension of the petitioner was revised from Rs.3500 to Rs.4030/- according to the corresponding pay band applicable to him without any pro rata reduction. It was claimed that, though clarificatory OMs were quashed and set aside, the Department of Pension and Pensioner's Welfare, Ministry of Personnel, Public Grievances & Pensions, Government of India has issued O.M.No.38/37/2008/P&PW(A) dated 28/1/2013 with a revised concordance table . The petitioner has not challenged the above in the writ petition. Further in the light of the decision reported in **K.S. Krishnaswamy and others v. Union of India and others,[(2006) 13 SCC 215]** the issue regarding the right of a pensioner to a W.P.(C)NO.32808/2018 6 subsequent upgraded pay scale cannot be considered as a valid precedent. The Supreme Court in _**Union of India v. Sethumadhavan and Ors ((AIR)2018 SC 1891**_ ) has held that the decision has already been settled in Krishnaswamy's case and the decision of the High Court without adverting to the decision of the Supreme Court in Krishnaswamy's is erroneous. Ext.P11 judgment is pending before the Apex Court and is under challenge. 6. It was claimed that after the various judicial pronouncements made by the Tribunals/courts, the Department of Pension and Pensioners Welfare has issued OM No. 38/37/08-P & PW (A) dated 28/1/2013 and 6/4/2016. These OMs now govern the pension entitlement of all the pre-2006 pensioners. As per OM No.38/37/08-P & PW (A) dated 28/1/2013, the Department has issued a revised concordance table of pre-1996, pre-2006 and post-2006 pay scales to facilitate payment of revised pension and family pension. All the cases of pre-2006 pensioners are now governed by the above O.M.dated 6/4/2016 read with O.M.dated 28/1/2013. The above has not been challenged by the writ petitioner. 7. Evidently, at present the petitioner is governed by O.M.No. 38/37/2008-P & PW(A) which is produced as Ext.R3(a) and the concordance table produced along with it dated 28/1/2013. Evidently, the challenge is against Ext.P11, which is preceded by Ext.R3(a). In the light of the present O.M. Ext.P10 stands clarified by Ext.R3(a) which now governs the field. 8. Having considered the above, I am inclined to dispose of the writ petition itself by clarifying that the petitioner shall be governed by Ext.R3(a) and his pension shall be governed in accordance with Ext.R3(a). Necessary orders shall W.P.(C)NO.32808/2018 7 be issued by the respondents and arrears, if any paid, as expeditiously as possible, in clarification of Ext.P10, at any rate, within a period of two months, from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. Sd/- **SUNIL THOMAS JUDGE** dpk W.P.(C)NO.32808/2018 8 ## **APPENDIX OF WP(C) 32808/2018** PETITIONER EXHIBITS |EXHIBIT P1|TRUE COPY OF THE PPO NO. 236089300717 DATED| |---|---| ||06/01/1994| |EXHIBIT P2|TRUE COPY OF THE EXTRACT OF THE FITMENT| ||TABLES ANNEXED TO THE MINISTRY OF FINANCE| ||DEPARTMENT OF EXPENDITURE OM F. NO. 1/1/2008-| ||IC DATED 30.08.2008| |EXHIBIT P3|TRUE COPY OF THE PPO DATED 13/04/2012 ISSUED| ||BY THE 5TH RESPONDENT| |EXHIBIT P4|TRUE COPY OF THE O.M. NO. 38/37/08-P & PW (A)| ||DATED 06.04.2016| |EXHIBIT P5|TRUE COPY OF THE REPRESENTATION DATED| ||13/09/2017 WITH POSTAL RECEIPT FILED BY THE| ||PETITIONER| |EXHIBIT P6|TRUE COPY OF THE JUDGMENT DATED 07/03/2018 IN| ||WPC 7570 OF 2018| |EXHIBIT P7|TRUE COPY OF THE DIARY NO. WO 236081200300396| ||DATED 04/05/2018 ISSUED BY THE 3RD RESPONDENT| |EXHIBIT P8|TRUE COPY OF THE REPRESENTATION DATED| ||04/06/2018| |EXHIBIT P9|TRUE COPY OF THE LETTER NO. PAO/CISF/MHA/PEN| ||2018-10-391 DATED 29/06/2018| |EXHIBIT P10|TRUE COPY OF THE OFFICE MEMORANDUM F NO.| ||38/37/08-P &PW (A) DATED 11/02/2009| |EXHIBIT P11|TRUE COPY OF THE JUDGMENT IN RAM PHAL VS| ||UNION OF INDIA AND OTHERS (MANU/DE/1917/2016)| RESPONDENTS EXHIBITS: EXT.R3(A): COPY OF THE OM NO.38/37/08-P & PW(A) DATED 28/1/2013 ISSUED BY MINISTRY OF PERSONNEL, PG & PENSIONS, DEPARTMENT OF PENSION & PENSIONERS' WELFARE