K.S. Joseph & O.V. Abraham v. Pay & Accounts Officer Border Security Force; Chief Controller Central Pension Accounting Office; Director General Border Security Force; Union of India

W.P.(C).No.26879 of 2017 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 16[TH] DAY OF JANUARY 2023 / 26TH POUSHA, 1944 WP(C) NO. 26879 OF 2017** ## **PETITIONERS:** 1 K.S.JOSEPH AGED 72 YEARS S/O.LATE OUSEPH, AGED 72 YEARS,HEAD CONSTABLE (FITTER) (RETD),BORDER SECURITY FORCE,KAITHAMATTATHIL, PERUMPANANCHY P.O.,CHANGANACHERRY, KOTTAYAM DISTRICT 686 536. 2 O.V.ABRAHAM AGED 73 YEARS S/O.LATE YOHANNAN,AGED 73 YEARS,NAIK (FITTER) (RETD),BORDER SECURITY FORCE,OLIKKATHUDIYIL, NARANAMMOOZHY P.O.,KADUMEENACHIRA, PERUNAD,PATHANAMTHITTA DISTRICT 689 711. BY ADVS. SRI.C.S.GOPALAKRISHNAN NAIR SMT.CHANDINI G.NAIR ## **RESPONDENTS:** 1 PAY & ACCOUNTS OFFICER BORDER SECURITY FORCE,PUSHPA BHAVAN, MADANGIR,NEW DELHI 110 063. 2 CHIEF CONTROLLER CENTRAL PENSION ACCOUNTING OFFICE,TRIKOOT II COMPLEX, BHIKAJICAMA PLACE,P.K.PURAM, NEW DELHI 110 063. 2 W.P.(C).No.26879 of 2017 3 DIRECTOR GENERAL BORDER SECURITY FORCE,BLOCK NO.10, CGO COMPLEX,LODHI ROAD, NEW DELHI 110 003. 4 UNION OF INDIA REPRESENTED BY ITS SECRETARY,DEPARTMENT OF PENSION & PENSIONER'S WELFARE, SOUTH BLOCK, NEW DELHI 110 001. BY ADV SRI.SUVIN R.MENON, CGC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 3.11.2022, THE COURT ON 16.01.2023 DELIVERED THE FOLLOWING: W.P.(C).No.26879 of 2017 3 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = = W.P.(c).No.26879 of 2017** **= = = = = = = = = = = = = = = = Dated this the 16[th] day of January, 2023** ## **JUDGMENT** ## 1.This writ petition is filed seeking the following relief: “ Issue a writ of mandamus or any other appropriate writ , order or direction to the respondents to revise the pension/family pension of the petitioners in Pay Band 1 Rs.5200-20200 with a grade pay of Rs. 2400/w.e.f 1.1.06 and disburse the arrears with 12% interest within a stipulated period. ” - 2.Heard the learned counsel for the petitioner and the learned Central Government Counsel appearing for the respondents. 3. It is submitted by the learned counsel for the petitioners that the 1[st] petitioner joined service on 06.09.1975 and retired as Head Constable (Fitter) on 30.04.2001 and the 2[nd] petitioner joined service on 1.04.1979 and retired as Naik on 31.07.1994. It is submitted that the petitioners were drawing monthly W.P.(C).No.26879 of 2017 4 pension of Rs.2096/- and 460/- vide Exhibits P1 and P2 Pension Payment orders respectively. - 4.It is further submitted that the post of Naik was abolished and redesignated as Head Constable and on the basis of the 6[th] Central Pay Commission recommendation, the pay of Central Government employees was revised w.e.f 1.1.2006 as per the CCS(RP) Rules, 2008 and that the pension of the Central Government Pensioners were also revised w.e.f 1.1.2006 as per resolution No. 38/37/08-P& PW(A) dated 29.08.2008. The 1[st] petitioner’s pension was revised only to Rs.4,738/- and 2[nd] petitioner’s to Rs.3500/- respectively w.e.f 1.1.06. - 5.It is submitted that the pay of Head Constable was revised to 5200- 20200 with a grade pay of Rs.2400/- and that as per the Exhibit P6 fitment table, the minimum pay in the pay band plus the grade pay is Rs.9840/- and thus the petitioners are entitled to be paid 50% of Rs.9840 i.e Rs.4920/- as pension. It is also contended that in spite of specific directions in Exhibit P8 Office Memorandum of the 3[rd] respondent regarding the W.P.(C).No.26879 of 2017 5 revision of pension of pre 2006 pensioners, the petitioners are not granted the benefit of revision of pension in the scale of pay applicable to the post of Head Constable. It is submitted that the petitioners had submitted representations and reminders before the 1[st] respondent, but no necessary action is being taken thereon. 6.The learned counsel for the petitioner places reliance on the judgments of the Hon'ble Apex Court in **Union of India and Another v. SPS Vains (Retd.) And others** [(2008)9 SCC 125] and **All Manipur Pensioners Association by its Secretary v. The State of Manipur and others [** Civil Appeal No. 10857 of 2016 ], of Hon'ble High Court of Delhi in **Ram Phal v. Union of India and others** [W.P(C) 3035 of 2016] and Exhibit P7 judgment of Central Administrative Tribunal in **M.O Inasu v. Union of India and others** [O.A 715/ 2012 and connected cases]. - 7.A detailed counter affidavit has been placed on record by respondents 1 to 4. It is contended that the petitioners, who W.P.(C).No.26879 of 2017 6 are pre-2006 pensioners, had been granted revision of pension specifically in terms of the applicable orders and guidelines, that is, at 50% of the minimum of the pay band plus grade pay corresponding to the pre-revised pay from which the pensioners had arrived at with reference to the fitment table annexed to O.M dated 30.8.2008. It is submitted that Naiks, who retired before 10.10.1997, were not benefited with rationalising of the rank structure and upgradation of pay. However, pursuant to the recommendations of the 6[th] pay commission, the pension of the 2[nd] petitioner was revised in compliance with the Office Memoranda dated 1.9.2008 and 14.8.2008 and fixed at Rs.3500/- per month with effect from 1.1.2006 by Exhibit R1(b). Thereafter, as per O.M. dated 28.01.2013 and 6.4.2016, the pension was again revised in the pay band 52000-20200 plus grade pay of Rs.1900/corresponding to the pre-revised scale from which he had retired and fixed at Rs.3890/- per month by Exhibit R1(c). The Office Memoranda dated 28.1.2013 and 6.4.2016 are also produced. It is stated that the pension of the 1[st] petitioner was revised and fixed at Rs.4738/- per month w.e.f 1.1.2006 in the W.P.(C).No.26879 of 2017 7 pay band 5200-20200, which is corresponding to the prerevised pay scale from which he had retired. It is specifically stated that the petitioners are not entitled to the pay band 5200-20200 with grade pay of Rs.2400/- , as the grade pay of Rs.2400/- is not the corresponding revised scale of pay of the post from which the petitioners retired. It is stated that there are separate orders for revision of pension of pre-2006 pensioners and it is only the pensioners, who were in service on or after 1.1.2006, are entitled to fixation of pay as claimed by the petitioners. It is further submitted that both the petitioners have been granted pension in the pay band plus grade pay corresponding to their pre-revised pay scale from which they retired and that the pension has been correctly fixed. 8.Reliance is placed on the decision of the **Union of India and others v. N.R Prabhu** [O.P (CAT) 198/17 and connected cases] **.** This Court, after taking note of the decision of the Apex Court in **K.S Krishnaswamy and others v. Union of India and another** [2006(13) SCC 215] has held that increase W.P.(C).No.26879 of 2017 8 in the pay scale in any recommendation of Pay Commission is a corresponding increase in the scale of pay and not of the post concerned. It was also held that there is no justification or reason to claim, for applying the Grade Pay of Rs.2800/- and that the question of applying para 4.2 of O.M dated 1.09.2008 would arise only if the revised pension is 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 petitioner had retired. 9.I have considered the contentions advanced on either side. I notice that the learned counsel for the petitioner relies on the decisions of the Apex Court holding that discrimination in the matter of pensionery benefits is impermissible. A Division Bench of this Court in judgment dated 4.9.2019 in OP(CAT) No.198 of 2017 and connected cases has considered the specific contention with regard to the alleged differential treatment meted out to pre 2006 pensioners of the Central Government, after considering the contentions of the parties and specifically referring to the decisions of the Apex Court in W.P.(C).No.26879 of 2017 9 **D.S.Nakara and others v. Union of India** [(1983) 1 SCC 305], **K.S Krishnaswamy and others v. Union of India and** **another** [2006(13) SCC 215] as also the judgments relied on by the petitioner. 10.Relying on the findings of the Apex Court in **Krishnaswamy's** case especially in paragraphs 15 and 17 thereof, the Division Bench of this Court held that an increase in pay scale on recommendation of pay commission is a corresponding increase in the scale of pay and not of the post concerned. Where the pay commission makes a recommendation of increase of scale of pay the employee would be entitled to the corresponding scale of pay taking note of the pre-revised scale of pay which the retiree was drawing at the time of his retirement. It was held that going by the decisions of the Tribunal in O.A.No.21/2015,526/2016 and 876/2016 which was the subject matter of the O.P.(CAT) irrespective of the scale of the pay which the retiree was drawing at the time of his retirement the pay band and grade pay of the post concerned will have to be taken into account. W.P.(C).No.26879 of 2017 10 It was held that the VI[th] CPC introduced four pay bands along with grade pay covering the then existing 32 scales of pay, apart from the scales applicable to the posts of Secretary and Cabinet Secretary. Considering the provisions of paragraphs 4.1 and 4.2 of O.M dated 1.9.2008, it was held that the pensioners would be entitled to fixation of pay in the scales corresponding to the pre-revised pay scale on which they had retired. It was therefore found that when O.M dated 1.9.2008 provides for taking into account the minimum of the pay in the pay band plus grade pay corresponding to the pre-revised pay scale from which the pensioner had retired, the contention that 50% of the minimum of the pay band plus grade pay with respect to the scale of pay of the post in question cannot be made applicable. The judgments of the CAT holding otherwise were struck down and the findings to the contrary were held to be against the decisions of the Apex Court in Krishnaswamy's case and therefore per incurium. 11.In the instant case as well, the specific case of the petitioner is that the petitioner is entitled to revision of pension at 50% W.P.(C).No.26879 of 2017 11 of the minimum of the revised pay band of the post of Head Constable. In view of the clear findings of the Divivion Bench of this Court in common judgment in O.P.(CAT) No.198/2017 and connected cases where it is held that the language of the office memoranda make it perfectly clear that pension is to be fixed at 50% of the minimum of the scale of pay corresponding to the pre-revised scale of pay in which the incumbent was drawing salary at the time of his retirement, I am of the opinion that the prayers, as sought for, in the writ petition cannot be granted. The writ petition fails and the same is accordingly dismissed. **Anu Sivaraman, Judge** sj W.P.(C).No.26879 of 2017 12 ## **APPENDIX OF WP(C) 26879/2017** PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE 1ST PETITIONER PPO. NO.240550110837 - EXHIBIT P2 A TRUE COPY OF THE 2ND PETITIONER PPO. NO.24055946618 - EXHIBIT P3 A TRUE COPY OF THE PAY STRUCTURE BSF - EXHIBIT P4 A TRUE COPY OF THE 1ST PETITIONER'S REVISED P.P.O NO.240440110837/ 1018360/A1 DATED 14/5/2012 ISSUED BY THE 2ND RESPONDENT - EXHIBIT P5 A TRUE COPY OF THE PENSION SLIP ISSUED BY STATE BANK OF TRAVANCORE KARUKACHAL BRANCH, FOR THE MONTH OF FEBRUARY 2016 - EXHIBIT P6 A TRUE COPY OF THE FITMENT TABLE - EXHIBIT P7 A TRUE COPY OF THE ORDER DT. 16/58/2013 IN OA NO.715/2012 - EXHIBIT P8 A TRUE COPY OF THE OM NO.38/37/08P&PW(A) DT: 6/4/2016 - EXHIBIT P9 A TRUE COPY OF THE REPRESENTATION DT: 18/5/2016 SUBMITTED BY THE 1ST PETITIONER - EXHIBIT P10 A TRUE COPY OF THE REPRESENTATION DT: 8/8/2016 SUBMITTED BY THE 2ND PETITIONER TO THE CPPA, STATE BANK OF TRAVANCORE, TRIVANDRUM WITH COPIES TO DEPUTY DIRECTOR (PENSION) W.P.(C).No.26879 of 2017 13 EXHIBIT P11 A TRUE COPY OF THE 2ND PETITIONER SUBMITTED BY A REMINDER DT: 30/9/2016 TO THE 1ST RESPONDENT EXHIBIT P12 A TRUE COPY OF THE LETTER UO.NO.26001/ADM-(PGC)/MISC/2016 DT: 24/10/2016 True copy PS to Judge