OP (CAT) No.198/2017 & conn. (Joint Kerala High Court Judgment disposing of OP (CAT) No.198/2017 and connected matters)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 04TH DAY OF SEPTEMBER 2019 / 13TH BHADRA, 1941** **OP (CAT).No.198 OF 2017(Z)** **AGAINST THE ORDER IN OA 21/2015 DATED 29-07-2016 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONERS/RESPONDENTS IN O.A:** - **1 UNION OF INDIA REPRESENTED BY THE SECRETARY, DEPARTMENT OF PENSION &PENSIONER'S WELFARE, MINISTRY OF PERSONNEL,** **PUBLIC GRIEVANCES AND PENSIONS, 3RD FLOOR, LOK NAYAK BHAVAN, KHAN MARKET, NEW DELHI - 110 003.** **2 PAY & ACCOUNTS OFFICER (REVISION AUTHORITY FOR CENTRAL CIVIL PENSIONS),TRIKOOT - 2, BHIKAJI CAMA PLACE, NEW DELHI - 110 066.** **3 THE SENIOR ACCOUNTS OFFICER DEPARTMENT OF LEGAL AFFAIRS, MINISTRY OF LAW, JUSTICE AND CORPORATE AFFAIRS, "B" WING, IV FLOOR, JANPATH BHAWAN,JANPATH , NEW DELHI - 110 012.** **BY ADVS.** **SRI.T.V.VINU, CGC** **O.P.(CAT) 198/2017 & conn.** 2 ## **RESPONDENT/APPLICANT IN O.A:** **N.R. PRABHU** **RETIRED ACCOUNTANT MEMBER OF INCOME TAX APPELLATE TRIBUNAL,XL/1670, PULLEPPADY CROSS ROAD, KOCHI - 682 018** ## **BY ADV. SRI.CHRISTOPHER ABRAHAM** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 04.09.2019 ALONG WITH OP(CAT).272/2017 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **O.P.(CAT) 198/2017 & conn.** 3 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 04TH DAY OF SEPTEMBER 2019 / 13TH BHADRA, 1941** **OP (CAT).No.272 OF 2017** **AGAINST THE ORDER DTD.19.5.2017 IN R.A.21/2017 IN OA 743/2014 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONER:** **K.MOOSA,AUDITOR (RETD.), DEFENCE ACCOUNTS,KADAMBRATH HOUSE, KURINHALIYODE P.O.,VILLIAPALLY, VATAKARA, KOZHIKODE DISTRICT- 673 542.** **BY ADVS.** **SRI.C.S.GOPALAKRISHNAN NAIR SMT.CHANDINI G.NAIR** ## **RESPONDENTS/RESPONDENTS:** - **1 PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS (PENSION), DRAUPADI GHAT, ALLAHABAD - 211014.** - **2 DEPUTY CONTROLLER OF DEFENCE ACCOUNTS TRIMULGHARRY, SECUNDRABAD - 500 015.** **O.P.(CAT) 198/2017 & conn.** 4 **3 UNION OF INDIA REPRESENTED BY ITS SECRETARY,DEPARTMENT OF PENSION & PENSIONERS'WELFARE, SOUTH BLOCK, NEW DELHI - 110 001.** **4 CHIEF MANAGER PENSION PROCESSING CENTRE, STATE BANK OF TRAVANCORE,VAZHUTHAKAD, THIRUVANANTHAPURAM,PIN - 695 014.** **BY SRI.AMAL GEORGE, SC, SBI R1-3 BY SRI.T.V.VINU, CGC R4 BY ADV. SRI.GEORGE THOMAS (MEVADA)(SR.)-R4** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 04.09.2019 ALONG WITH OP(CAT).198/2017 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **O.P.(CAT) 198/2017 & conn.** 5 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 04TH DAY OF SEPTEMBER 2019 / 13TH BHADRA, 1941** ## **OP (CAT).No.277 OF 2017** **AGAINST THE ORDER IN OA 526/2016 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONERS/RESPONDENTS:** **1 DIRECTOR OF ACCOUNTS (POSTAL) KERALA CIRCLE,TRIVANDRUM-695001.** **2 CHIEF POSTMASTER GENERAL KERALA CIRCLE,TRIVANDRUM-695033. 3 UNION OF INDIA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF PENSION & PENSIONERS' WELFARE LOKNAYAK BHAVAN,KHAN MARKET,NEW DELHI-110001. BY ADV.** **SRI.T.V.VINU, CGC** **O.P.(CAT) 198/2017 & conn.** 6 ## **RESPONDENT/APPLICANT:** ## **V. PRABHAKARAN** **S/O.LATE T.KUTTAPPAN NAIR,AGED 78 YEARS, DEPUTY POSTMASTER(HSGI)(RETD), VARIKATTU HOUSE,SUPREBHA,PALISSERY, ANNAMADA.P.O,THRISSUR-680741.** ## **BY ADV.C.S.GOPALAKRISHNAN NAIR** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 04.09.2019 ALONG WITH OP(CAT).198/2017 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **O.P.(CAT) 198/2017 & conn.** 7 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 04TH DAY OF SEPTEMBER 2019 / 13TH BHADRA, 1941** **OP (CAT).No.114 OF 2018** ## **AGAINST THE ORDER IN OA 876/2016 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONERS/RESPONDENTS:** - **1 ZONAL ACCOUNTS OFFICER CENTRAL BOARD OF DIRECT TAXES, IIIRD FLOOR, SAN JUAN TOWERS, BEHIND CENTRAL REVENUE BUILDINGS, OLD RAILWAY STATION ROAD, COCHIN-682 018.** - **2 CHIEF CONTROLLER OF ACCOUNTS CENTRAL PENSION ACCOUNTING OFFICE, TRIKOOT II COMPLEX, BHIKAJICAMA PLACE, R.K.PURAM, NEW DELHI-110 066.** - **3 UNION OF INDIA,REPRESENTED BY ITS SECRETARY, MINISTRY OF PENSION AND PENSIONER'S WELFARE, NORTH BLOCK,NEW DELHI-110 001.** - **4 PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX CENTRAL REVENUE BUILDINGS, I.S.PRESS ROAD, COCHIN-682 018.** **BY SRI.T.V.VINU, CGC** **O.P.(CAT) 198/2017 & conn.** 8 ## **RESPONDENT/APPLICANT:** **KURIAN JOSEPH S/O LATE M.K.JOSEPH, INSPECTOR OF INCOME TAX (RETD.),CLIFF HOUSE, KURICHY, SACHIVOTHAMAPURAM P.O., KOTTAYAM DISTRICT-686 532.** **BY ADV.C.S.GOPALAKRISHNAN NAIR** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 04.09.2019 ALONG WITH OP(CAT).198/2017 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **O.P.(CAT) 198/2017 & conn.** 9 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 04TH DAY OF SEPTEMBER 2019 / 13TH BHADRA, 1941** **OP (CAT).No.5 OF 2019** **AGAINST THE ORDER IN OA 59/2018 DATED 05-11-2018 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONER/APPLICANT:** **K.G.PRABHAKARAN,** **S/O. LATE K.K. GOVINDAN, AGED 75 YEARS, MANCHINST (HS-1) (RETD), HEAVY VEHICLE FACTORY, AVADI, KATTUPARAMBIL HOUSE, P. VEMBALLUR P.O, THRISSUR DIST.-680 671** **BY ADVS. SRI.C.S.GOPALAKRISHNAN NAIR SMT.PRASEEDHA T.** ## **RESPONDENTS/RESPONDENTS:** - **1 PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS, ACCOUNTS, DRAUPATHI GHAT, ALLAHABAD-211 014** - **2 CONTROLLER OF DEFENCE ACCOUNTS 618,ANNASALAI, TEYNAMPET, CHENNAI- 600 018** - **3 GENERAL MANAGER HEAVY VEHICLE FACTORY, AVADI, CHENNAI-400 054** **O.P.(CAT) 198/2017 & conn.** 10 - **4 DEFENCCE PENSION DISBURSING OFFICER THRISSUR-680 001** - **5 UNION OF INDIA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF PENSION AND PENSIONERS WELFARE, SOUTH BLOCK, DELHI-110 001** **R1-5 BY SMT.I. SHEELA DEVI, CGC** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 04.09.2019 ALONG WITH OP(CAT).198/2017 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **O.P.(CAT) 198/2017 & conn.** 11 ## **JUDGMENT** _Ravikumar, J._ The individual petitioners and party respondents in the captioned original petitions are pre-2006 pensioners of different departments under the Central Government who felt to have been treated deferentially and indiscriminately in the matter of implementation of the VI[th] Central Pay Commission (CPC) recommendations, with effect from 1.1.2006. Though their grievances were alleviated to certain extent, the individual petitioners still feel aggrieved generally by the manner in which the benefits flowing from VI[th] CPC were calculated and in that regard their pay and pension were revised. Union of India and its officers who were the official respondents in the original applications, the judgment of which are impugned, too got grievance against the directions issued by the Central Administrative Tribunal, Ernakulam Bench in some original applications. It is in the said circumstances that this bunch of original petitions are filed. The issues involved and to be resolved in all the **O.P.(CAT) 198/2017 & conn.** 12 captioned original petitions are similar in nature. Therefore, they were heard jointly and are being disposed of by this common judgment. 2. O.P.(CAT)Nos.198 of 2017 and 272 of 2017 arise from order dated 29.7.2016 in O.A.No.21 of 2015 and from order dated 17.7.2017 in O.A.No.743 of 2014 respectively. In fact, in O.P. (CAT)No.272 of 2017, the order dated 19.5.2017 in R.A.No.21 of 2017 in O.A.No.743 of 2014 is also under challenge. O.P. (CAT)Nos.114 of 2018, 277 of 2017 and 5 of 2019 arise from the orders in O.A.No.876 of 2016 dated 31.8.2017, in O.A.No.526 of 2016 dated 16.3.2017 and in O.A.No.59 of 2018 dated 5.11.2018, respectively. 3. We will briefly narrate the factual matrix in each of the captioned original petitions. ## **O.P.(CAT)No.272 of 2017 arising from O.A.No.743 of 2014.** 4. This original petition carries consolidated challenge against the order dated 19.5.2017 in R.A.No.21 of 2017 in O.A.No.743 of **O.P.(CAT) 198/2017 & conn.** 13 2014 and the order dated 17.7.2015 in O.A.No.743 of 2014, of the Tribunal. The petitioner – applicant retired voluntarily from the Defence Accounts Department on 30.6.1986, after rendering a qualifying service of 25 years, 2 months and 26 days, while working as Auditor. The case of the petitioner before the Tribunal was as hereunder:- At the time of retirement, the petitioner was drawing pay in the scale of pay of Rs.1200-2040. Later, the pay scales of staff working in Organized Accounts Departments were revised w.e.f. 1.1.1996 and as per the said order viz., order No.AN/III/PF/127/RPR/Revised Scales dated 1.4.2003 issued by the Controller of Defence Accounts, Chennai, the pay scale of Auditor was revised to Rs.4500-7000 with retrospective effect from 1.1.1996. On implementation of the recommendation of VI[th] CPC which introduced the concept of pay band and grade pay, the pay scale Rs.4500-7000 was revised and put in the pay band of Rs.5200-20200 with a grade pay of Rs.2800/-. In such circumstances, the minimum pay in the said pay band plus grade **O.P.(CAT) 198/2017 & conn.** 14 pay would be Rs.11,170/-, as per the fitment table annexed to CCS (Revised Pay) Rules, 2008 and therefore, he is eligible to get Rs.5,585/- as pension, being 50% of Rs.11,170/-. Instead of paying him the said amount as pension, his pension was revised only to Rs.4,331/- w.e.f. 1.1.2006. The respondents therein resisted such contentions. However, the Tribunal as per Ext.P4 common order dated 17.7.2015 allowed O.A.No.743 of 2014 after referring to the decision of the Hon'ble Apex Court in **D.S.Nakara & Others** v. **Union of India [(1983) 1 SCC 305]** , its earlier order dated 16.8.2013 in O.A.Nos.715/2012 & 1051/2012, and various other verdicts of the Apex Court, various High Courts including this Court and orders of the Principal Bench of the Tribunal. The operative portion of Ext.P4 order dated 17.7.2015 reads thus:- “Issues raised in these O.As stand covered by the above decisions of the Tribunal, High Court and Supreme Court. We do not find any reason to add to the judgment already delivered in a similar adjudicated matter. Any modification of the Cabinet resolution by a subsequent administrative order is ultra vires. Accordingly, the O.As are allowed. The respondents are directed to issue revised Pension **O.P.(CAT) 198/2017 & conn.** 15 Payment Orders to the applicants in the O.As - specifying that pension of pre 2006 retirees will be calculated on the basis of 50% of the minimum of the - pay band plus grade pay corresponding to the pre revised pay scale of the respective post held at the time of retirement, proportionate to the length of his service and fix higher of the two as pension with effect from 1.1.2006 and corresponding family pension and grant all consequential benefits including arrears of pension within a period of 90 days from the date of receipt of a copy of this order. No order as to costs.” (underline supplied) 5. Pursuant to Ext.P4, the first respondent in the said O.A. passed Ext.P5 order therein dated 29.12.2015 whereunder the pension of the petitioner was fixed as Rs.3801/-. In Ext.P5, it is ordered thus:- “In view of the above the two possible option with respect to the Hon'ble CAT order could be either to revise the pension wef 01/01/2006 as per para 4.1(consolidated pension) of OM dated 01/09/2008 which comes to Rs.3801/- in your case or the same to be calculated as per O.M dated 28/01/2013 and para 10 of the Hon'ble CAT order i.e.50% of the minimum of the pay band plus grade pay corresponding to the prerevised pay scale of the respective post held at the time of retirement, proportionate to the length of his service (25 years) which comes to Rs.2879/- (Rs3800x25/33). Hence, pension in **O.P.(CAT) 198/2017 & conn.** 16 this case is correctly notified to Rs.3801/- PM being more beneficial.” Since according to the petitioner, the common order dated 17.7.2015 was not implemented, he filed M.A.No.606/2016 in O.A.No.743 of 2014 seeking a direction to implement the decision in O.A.No.743 of 2014 in letter and spirit. Meanwhile, based on O.M. dated 6.4.2016 dispensing with the requirement of 33 years of qualifying service for pension, the first respondent revised the pension of the petitioner to Rs.4920/- w.e.f. 1.1.2006, taking the grade pay of Rs.2400/corresponding to the pre-revised pay scale of Rs.4000-6000. In the said circumstances, the petitioner moved R.A.No.21 of 2017 in O.A.No.743 of 2014 seeking 50% of the revised minimum pay applicable to the post from which he retired. It is contended that the grade pay of Auditor was Rs.2800/- and the first respondent had issued revised PPO taking into account the grade pay as Rs.2400/-. However, the said review application was dismissed as per order dated 19.5.2017. Obviously, the Tribunal took note of the fact that in O.A.No.743 of 2014, the petitioner herein produced a copy of the **O.P.(CAT) 198/2017 & conn.** 17 common order in O.A.Nos.715/2012 & 1051/2012 (Annexure-A10) in support of his claim and as per the said common order it was only held that in no case the pension of pre-2006 pensioners should be less than 50% of the minimum of the pay in the pay band plus grade pay thereon corresponding to the pre-revised pay scale from which the pensioner had retired. Consequently, it was held that the petitioner herein/the review applicant could not claim a relief which was not granted as per Annexure-A10 order relied on by him. In fact, the Tribunal also held that in view of Rule 17(1) of CAT (Procedure) Rules the application moved by the review applicant to condone the delay of 580 days in filing the review application viz., M.A.No.408/2017 could not be entertained. The Tribunal had also held that the petitioner herein, the review applicant was actually seeking a re-hearing of the matter which is impermissible under review jurisdiction. Consequently, the review application was dismissed. It is in the said circumstances that he made consolidated challenge against the order in the Original Application as also in the **O.P.(CAT) 198/2017 & conn.** 18 Review Application moved thereon. ## **O.P.(CAT)No.198 of 2017 arising from O.A.No.21 of 2015.** 6. This original petition is filed by the respondents in the above mentioned O.A. The respondent herein/the applicant therein retired from the Income-Tax Appellate Tribunal (KAT) as Accountant Member on 10.10.1994. At the time of his retirement, he was drawing salary in the scale of pay of Rs.7300-7600. The O.A. was filed mainly with the prayer to restore the pension admitted earlier to him viz. Rs.37,750/- being 50% of Rs.75,500/- which is the minimum pay in the HAG + Scale of Rs.75,500-80000 applicable to the members of ITAT. He filed the said O.A. seeking such a prayer raising the following contentions:- At the time of his retirement as Accountant Member of ITAT, he was drawing salary in the scale of pay of Rs.7300-7600. Later, upon implementation of the Government decision on the recommendations of the V[th] CPC, his pension was revised to Rs.11200/- w.e.f. 1.1.1996 being 50% of Rs.22,400/- which was the minimum pay of the **O.P.(CAT) 198/2017 & conn.** 19 replacement scale of Rs.22400-525-24500/- for the erstwhile scale of pay of Rs.7300-7600. Later, as per Annexure-A8 order dated 6.10.1999 issued by the Ministry of Law, Justice and Company Affairs, the pay scale for the post of Member, ITAT was upgraded from Rs.7300-7600 to Rs.7300-8000/- with retrospective effect from 1.1.1996. Hence, according to the petitioner, instead of revising his pension based on the minimum pay in pay band of Rs.22400-24500, which is the replacement scale for Rs.7300-7600, his pension ought to have been revised taking into account the minimum in the pay band of Rs.22400-26000 which is the replacement scale of the pay scale Rs.7300-8000. At the same time, a perusal of the pleadings of the respondent herein/the applicant would reveal that he himself would admit that his pension of Rs.11200/- was 50% of Rs.22400/- which is the minimum of both the scales of pay viz., Rs.22400/-525-24500/and Rs.22400-600-26000/-. According to the respondent herein, there was no necessity for him to seek for a revision in the said circumstances. Subsequently, as per Annexure-A10, on the **O.P.(CAT) 198/2017 & conn.** 20 implementation of the recommendations of the VI[th] CPC, his pension was re-fixed at Rs.37,750/-, being 50% of the minimum of the HAG + scale of Rs.75500-80000 which is the replacement scale for Rs.22400- 26000. Stating that the said re-fixation of his pay was erroneous, in the light of Annexure-A1 (Ext.P1) his pension was re-revised and he was granted pension reckoning the pre-revised scale for Rs.2240024500. It is contending that reduction of pension is in contravention of Rule 17 of the CCS Pension Rules and that pension once fixed after final assessment could not be revised to the disadvantage of the Government servant and such other contentions that he moved the above mentioned Original Application. 7. In the reply statement the respondents therein viz., the petitioners herein stated that the scale of pay of Rs.22400-525-24500/is the replacement scale for Rs.7300-7600 and it is reckoning the same that the pension of the respondent-applicant was revised to Rs.11200/-. While implementing decisions on the recommendation of the VI[th] CPC, the scale of pay of Rs.22400-525-24500 was replaced **O.P.(CAT) 198/2017 & conn.** 21 with the pay band of Rs.67000-79000, with Grade Pay Nil. It is further stated therein that the scale of pay of Rs.7300-8000 was replaced by the V[th ] CPC scale of Rs.22400-600-26000/- and it was that replaced scale which was revised by the pay band of Rs.7500080000+G.P Nil on implementation of the decisions on the recommendations of the VI[th] CPC. In the said circumstances that the petitioner herein viz., the respondent therein maintained the stand that pension of the applicant was fixed erroneously at the rate of 50% of Rs.75500/-, instead of 50% of Rs.67000/- and it was in the said circumstances that the said mistake was corrected. They also specifically stated therein that the said action is fully in conformity with the decision of the Hon'ble Apex Court in **K.S.Krishnaswamy and others v. Union of India and another** reported **(2007) 2 SCC (L & S) 491** . In fact, they also produced a copy of the said decision as Annexure-R1 in the said original application. The Tribunal found the crucial point for consideration as follows:- The crucial point for consideration is whether the applicant is **O.P.(CAT) 198/2017 & conn.** 22 entitled to get 50% of the scale of the post which was upgraded to Rs.7300-8000 with effect from 1.1.1996, which was later upgraded to Rs.75500-80000 or only on the corresponding pay scale of Rs.6700079000. Ultimately, it was held that when the fact remained is that the applicant had retired as Accountant Member of ITAT, pension has to be computed on the basis of the re-fixation of the scale of Member, ITAT. After considering the rival contentions, relying on an earlier order passed by the Tribunal in O.A.No.1135 of 2013, which was confirmed by this Court in O.P(CAT) No.169/2015 and also a decision of a Full Bench of the Tribunal in O.A.No.655/2010 and connected cases which was affirmed by the High Court of Delhi, the Tribunal held that causing reduction of pension of the applicant from Rs.37,750/- is unsustainable. Consequently, the Original Application was allowed with a direction to the petitioners herein/respondents therein to re-fix the pension admissible to the applicant at Rs.37,750/-, being 50% of Rs.75,500/- which is the minimum pay in the HAG + scale of Rs.75500– 80000. The petitioners herein were also directed **O.P.(CAT) 198/2017 & conn.** 23 to pass consequential orders and to pay arrears of pension to the respondent herein within two months from the date of receipt of copy of the order. It is in the said circumstances that the captioned original petition has been filed. ## **O.P.(CAT)No.5 of 2019 arising from O.A.No.59 of 2018.** 8. The petitioner herein was the applicant in the above mentioned original application. He retired voluntarily w.e.f. 6.1.1991 while working in the Defence Establishment under the 4[th] respondent as a Machinist (High Skilled Gr.I). At the time of retirement, he was drawing salary in the scale of pay of Rs.1320-30-1560-40-2040. On his retirement, his monthly pension was fixed at Rs.745/-. After the implementation of the recommendations of the VI[th] CPC, his pension was revised to Rs.5,134/- w.e.f. 1.1.2006. The case of the petitioner is that the Ministry of Defence had issued order dated 14.6.2010 with regard to the pay scale applicable to the Artisan Staff in the Defence Establishment based on the recommendations of the VI[th] CPC. The pay of Machinist HSG-I was revised to PB-1 of Rs.5200-20200 with a **O.P.(CAT) 198/2017 & conn.** 24 grade pay of Rs.2,800/-. In such circumstances, he is entitled to 50% of the minimum pay in the revised pay band plus grade pay applicable to the post of Highly Skilled Grade-I viz., Rs.5,585/-. The respondents herein resisted the aforesaid claims and contentions of the petitioner. Meanwhile, the 3[rd] respondent, as per Annexure-A7 letter dated 26.4.2017 addressed to the 4[th] respondent, stated that the revised pay scale of the applicant as per the V[th] CPC was Rs.4000-100-6000 and as per VI[th] CPC, it was Rs.5200-20200, with a grade pay of Rs.2400/-. The petitioner relied on the decision of this Court in O.P(CAT) No.169/2015 dated 18.1.2016 holding that a pensioner is entitled to pension at 50% of the revised pay scale of the post from which he retired and not based on the corresponding scale of pay in which the pensioner concerned had drawn salary at the time of retirement. He also relied on the decision of the High Court of Delhi in **Ramphal v. Union of India** (W.P.(C) No.3035/2016 dated 3.8.2016 whereby it quashed O.M dated 11.2.2009 to the extent it states that the benefit of upgradation of posts subsequent to the retirement would not **O.P.(CAT) 198/2017 & conn.** 25 be admissible to the pre-2006 pensioners. Essentially, it is seeking quashment of Annexure-A7 and a declaration that he is entitled to pension based on the pay band plus grade pay i.e., Rs.5200-20200 with a grade pay of Rs.2800/- applicable to the post of Highly Skilled Grade-I w.e.f. 1.1.2006 and consequential benefits that the Original Application was filed. The respondents filed a reply statement refuting the claims and contentions of the petitioner/applicant. It is stated therein that the petitioner had voluntarily retired from the service of the 3[rd] respondent factory on 6.1.1991 before implementation of ACP which was effective only from 9.8.1999. Furthermore, they stated on the following lines in the reply statement:- 9. The applicant retired voluntarily on 6.1.1991 as Machinist HS-I after completing 26 years 05 months and 12 days and thereafter, his pension and gratuity were calculated after giving 5 years weightage to the qualifying service as per the existing rule at that time. Annexure-A7 letter dated 26.4.2017 was issued after considering all the points raised by the petitioner in his representation. **O.P.(CAT) 198/2017 & conn.** 26 As per Annexure R(i) dated 14.6.2010, Government of India had issued orders on restructuring of cadre of Artisan Staff in Defence Establishment in modification to recommendation of VI[th] CPC. Consequently, the Ordinance Factory Board (OFB), Kolkata issued Annexure-R(j) dated 13.12.2010 carrying necessary instructions to all concerned for implementation of Annexure-R(i) regarding cadre restructuring of Artisan Staff. In terms of those orders, Highly Skilled Cadre was split into Highly Skilled Grade-I and Highly Skilled Grade-II. The seniormost Highly Skilled Employees shall be placed in Highly Skilled Grade-I as per the revised ratio and the remaining shall be placed in Highly Skilled Grade-II. The placement of individuals based on such restructuring was to be made and as such, was made w.e.f 1.1.2006. It was therefore not applicable to the petitioner as he had retired voluntarily from service on 6.1.1991. At the time of retirement, the petitioner was drawing salary in the pay scale Rs.1320-30-1560-40-2040 and the corresponding pay scale under the V[th] CPC and the pay band under the VI[th] CPC are **O.P.(CAT) 198/2017 & conn.** 27 respectively Rs.4000-100-6000 and pay band-5200-20200+GP 2400/-. There was no upgradation of scale of pay in the case of the petitioner and his pension was fixed rightly. Since the petitioner was already getting a pension of Rs.5134/- which is more than the minimum pension of Rs.4920/-, revision of pension based on O.M dated 6.4.2016 is not beneficial to him. After considering the rival contentions and the rival pleadings, the Tribunal passed the impugned Ext.P5 order. The Tribunal after referring to Annexure-R(q) O.M. dated 1.9.2008 carrying the governmental decision on the VI[th] CPC recommendations revising pension/family pension, more particularly, para. 4.2 of the said O.M. held that going by the same, revised pension shall in no case be lower than 50% of the minimum of the pay in the pay band plus grade pay corresponding to the pre-revised pay scale from which the petitioner had retired. Consequently, the O.A. was dismissed. It is challenging the said order that the above original petition has been filed. Essentially, the case of the petitioner is that he is entitled to pension based on pay band Rs.5200-20200 with a **O.P.(CAT) 198/2017 & conn.** 28 grade pay of Rs.2800/- applicable to Highly Skilled Grade-I w.e.f. 1.1.2006. ## **O.P.(CAT) No.277 of 2017 arising from O.A No.526 of 2016** 10. The respondents in O.A.No.526 of 2016 on the files of the Tribunal are the petitioners herein. They are aggrieved by the order passed thereon to the effect that the applicant therein viz., the respondent herein is entitled to revised pension in terms of paragraph 4.2 of OM dated 16.3.2017 or 50% of the minimum pay in the pay band of Rs.9300-34,800 with grade pay of Rs.4600/- or as per Annexure A4 fitment table whichever is beneficial to the applicant/the respondent herein. 11. The applicant/the respondent herein is a retiree from the Postal Department. In fact, he retired from its service on 30.9.1996 while working as Deputy Postmaster (HSG-I), after rendering a total service of 36 years, 9 months and 8 days. At the time of his retirement, he was drawing salary in the scale of pay of Rs.6500- 10500. He was granted monthly pension of Rs.3918/- w.e.f **O.P.(CAT) 198/2017 & conn.** 29 1.10.1996. This fact is evident from Annexure A1 PPO dated 12.9.1996. After his retirement from service, he was granted retrospective promotion to LSG, HSG II and HSG I pursuant to the order of the Tribunal in O.A.No.851 of 1998. He was granted such promotions viz., in LSG w.e.f 1.3.1983, in HSG-II w.e.f 19.6.1990 and as HSG-I w.e.f 19.4.1996. On implementation of the VI[th] CPC, the pay scale of HSG-I was upgraded to Rs.7450-10500/- in PB-2 with a grade pay of Rs.4600/-, it was contended by the applicant/the respondent herein. It was also contended that as per the Government of India resolution No.38/37/08-P&PW(A) dated 29.8.2008, on the recommendations of the VI[th] CPC, pension/family pension of pre2006 pensioners was revised w.e.f 1.1.2006. Based on the said resolution, OM F.No.38/37/08-P&PW(A) dated 1.9.2008 was issued. It was further contended by the applicant/the respondent herein that though he retired from service when his pay scale was Rs.650010,500/-, he is entitled to revised pension taking 50% of the minimum in the pay band of Rs.9300-34800/- with grade pay of Rs.4600/- as the **O.P.(CAT) 198/2017 & conn.** 30 pay scale of Deputy Postmaster (HSG-I) was revised to Rs.930034800 with a Grade pay of Rs.4600/- w.e.f. 1.1.2006 as per CCS (Revised Pay) Rules, 2008. The applicant/respondent herein also contended that as per the fitment table annexed to CCS (RP) Rules, 2008, the minimum pay in the pay band of Rs.9300-34800 with a Grade Pay of Rs.4600/- is Rs.18460/-. Therefore, he is entitled to 50% of that amount of Rs.18460/- as pension viz., Rs.9230/w.e.f.1.1.2006. To fortify his contentions, the applicant had relied on Annexure-A4 fitment table annexed to CCS (RP) Rules and also Annexure A5 order of the Tribunal in O.A.No.715/2012. Though Annexure A5 order was challenged before this Court, it was dismissed by judgment dated 7.1.2014 in O.P(CAT) No.8/2014. SLP filed against the same and the Review Petition filed against the order thereon, were also dismissed, it is contended. Thereafter, the applicant submitted Annexures A7, A8 and A9 representations. However, they remain unattended. In the circumstances, it is inter alia, raising such contentions that the captioned O.A was filed by the applicant/the **O.P.(CAT) 198/2017 & conn.** 31 respondent herein. 12. The petitioners 1 to 3 herein viz., the respondents therein resisted the claims and contentions of the applicant and contended that his entitlement is only to get Rs.6750/- i.e., 50% of the sum of the minimum in the pay band plus grade pay of Rs.4200/-, as pension. They also contended that on implementation of the VI[th] CPC, three pre-revised pay scales viz., Rs.6500-200-10500, Rs.7450-225-11500 and 7500-250-12000, were merged together and were replaced by the revised pay structure with grade pay of Rs.4600/- in PB-2 of Rs.930034800/-. Therefore, according to them, the merger of the pay scales and the resultant pay structure of Rs.9300-34800 with grade pay of Rs.4600/-, is applicable only to the employees from 1.1.2006 and it is not applicable to the applicant. In short, the applicant's claim for the revised pension of Rs.9230/- w.e.f 1.1.2006 is untenable and according to the petitioners, viz., respondents 1 to 3 therein, he is entitled to get only Rs.6750/-. The Tribunal virtually repelled the aforesaid contentions of the petitioners herein viz., the respondents **O.P.(CAT) 198/2017 & conn.** 32 therein and held that the applicant/the respondent herein is entitled to a revised pension in terms of paragraph 4.2 of OM dated 16.3.2017 or 50% of the minimum pay in the pay band of Rs.9300-34,800 with grade pay of Rs.4600/- or as per Annexure A4 fitment table whichever is beneficial to him. The respondents were also directed to issue revised pension payment order in terms of the order within the time stipulated thereunder. It is aggrieved by such findings and directions that respondents 1 to 3 therein filed the above original petition. ## **O.P.(CAT) No.114 of 2018 arising from O.A.No.876 of 2016** 13. The respondents in O.A.No.876 of 2016 on the files of the Tribunal preferred this original petition against the order passed thereon. The respondent herein who was the applicant therein retired from service as Inspector of Income Tax on 31.8.1988, on superannuation. After long service in the Indian Air Force, he joined the Income Tax Department on 28.6.1968. Upon his retirement, he was granted a monthly pension of Rs.683/-. Annexure A1 is the pension payment order. Upon revision from time to time, it became **O.P.(CAT) 198/2017 & conn.** 33 Rs.7215/- w.e.f 1.1.2006. Annexure A2 is the order of the second petitioner/second respondent therein issued in that regard. It was after rendering a service of 20 years, 2 months and 2 days that the applicant/the respondent herein retired from the service of the Income Tax Department. He submitted Annexure A7 representation to the 4[th] petitioner/the 4[th] respondent therein claiming Rs.8345/- as pension, being 50% of the minimum pay in the revised pay band of Rs.930034800/- and grade pay of the post from which he retired, based on Annexure A3 OM No.38/37/08-P & PW (A) dated 6.4.2016 and Annexure A5 order of the Tribunal in O.A.No.579/2013 dated 31.7.2014 and Annexure A6 judgment of this Court in O.P(CAT)No.169/2015. The fourth respondent therein/the fourth petitioner herein referred the matter to the first petitioner (first respondent therein) and thereupon, it was considered and his claim was rejected as per Annexure A9 order dated 21.9.2016. The Original Application was filed by him challenging Annexure A9 and seeking its quashment and also for a declaration that he is entitled to revision **O.P.(CAT) 198/2017 & conn.** 34 of pay as per para 4.2 of OM dated 1.9.2008 i.e. 50% of the minimum of pay in the pay band plus the grade pay of Inspector of Income-Tax, which is Rs.8345/- w.e.f 1.1.2006. 14. The petitioners/respondents therein resisted the claims and contentions. They contended that the applicant's pension is not lower than 50% of the minimum of the pay in the pay band plus grade pay corresponding to the pre-revised pay scale in which he was drawing pay at the time of his retirement. The Tribunal repelled the contentions of the petitioners/the respondents therein and allowed the O.A. holding that the applicant is eligible for pension in accordance with the corresponding post and not in accordance with the corresponding pay scale and therefore, he would be eligible for 50% of the minimum of the pay in the pay band plus grade pay of Inspector of Income-Tax viz., Rs.8345/- as pension w.e.f 1.1.2006. The benefits were to be made available to the applicant within a period of three months from the date of receipt of copy of the order without interest and thereafter with interest at 12% per annum, as per impugned order. **O.P.(CAT) 198/2017 & conn.** 35 It is aggrieved by the said order that the respondents therein preferred this original petition. 15. Now, we will consider the common question posed for consideration in the captioned original petitions. From the facts of each of the cases adverted to hereinbefore, it is evident that, be the petitioners herein or respondents herein, the grievances raised against the adverse orders of the Tribunal or the contentions raised to get sustained the favourable orders of the Tribunal by those parties in the captioned original petitions who were applicants before the Tribunal are the same. To be precise, the respondents in O.P. (CAT)Nos.198/2017, 277/2017 and in 114/2018 and the petitioners in the other original petitions, who were applicants in the aforesaid O.As and pre-2006 pensioners, raised almost the same contentions, either to challenge the order of the Tribunal or to resist the challenge against the order of the Tribunal. Their contentions as also the contentions of Union of India and its Officers who were respondents before the Tribunal would reveal that the polemical issue pertains to calculation **O.P.(CAT) 198/2017 & conn.** 36 of revised assured minimum pension pursuant to the implementation of Government's decision on the recommendations of the VI[th] CPC relating to revision of pension/family pension. In fact, Office Memorandum dated 1.8.2008 was issued for implementation of Government's decision on the recommendations of the VI[th] CPC in the matter of revision of pension of pre-2006 pensioners/family pensioners. To put it succinctly, the common contention of the applicants before the Tribunal, be either petitioners or respondents in the captioned O.Ps, is that the minimum revised pension of pre-2006 pensioners/family pensioners, pursuant to the implementation of the Government's decision on the recommendations of the VI[th] CPC relating to retirement benefits, viz., in view of para 4.2 of the O.M dated 1.9.2008, shall not be lower than 50% of the sum of the minimum of the pay in the pay band corresponding to the pre-revised scale of the respective post held by them at the time of retirement. Obviously, to resist such contentions, Union of India and its officers are raising the contention that in terms of paragraph 4.2 of the O.M. **O.P.(CAT) 198/2017 & conn.** 37 dated 1.9.2008, which contains the policy decisions of the Government on the recommendations of the VI[th] CPC, for the application of para 4.2 to fix the minimum revised pension what is relevant is the pre-revised pay scale in which the pensioner concerned was drawing pay at the time of retirement and not the post from which the pensioner concerned had retired. 16. A scanning of the contentions of Union of India and its officers in the original petitions filed by them as also their pleadings in the other original applications taken up before the Tribunal, would reveal that they essentially rely on the decisions of the Hon'ble Apex Court in **Krishnaswamy'** s case, **Union of India v. R.Sethumadhavan and Ors.** reported in **AIR 2018 SC 1891** and in **Union of India (UOI) v. S.R.Dhingra and Ors. r** eported in **[(2008) 2 SCC 229]** , to resist the claims and contentions of the applicants, who are pre-2006 pensioners, attributing error or illegality in the matter of calculation of minimum pension in terms of para 4.2 of OM dated 1.9.2008 pursuant to the implementation of the recommendations of **O.P.(CAT) 198/2017 & conn.** 38 the VI[th] CPC. Per contra, the applicants in the OAs would contend that for calculating minimum revised pension based on para 4.2 of OM dated 1.9.2008, it is not the pre-revised scale of pay in which a pensioner concerned was drawing pay at the time of his retirement that is relevant and what is to be looked into in that regard is the post from which the pensioner concerned retired so as to identify the minimum pay in the corresponding pay band and grade pay attached to that post from which he retired. The applicants in the OAs from which the captioned OPs arise relied on decisions of the the Principal Bench of the Central Administrative Tribunal in O.A No.655 of 2010 and connected cases which were confirmed by the High Court of Delhi in W.P.(C) No.1535 of 2012 and connected cases following a Division Bench decision of the Punjab and Haryana High Court against which a Special Leave Petition was unsuccessfully attempted. They also relied on a decision of a Division Bench of this Court in O.P(CAT) No. 169 of 2015 dated 18.1.2016 rendered by placing reliance on the aforesaid decision in O.A No.655 of 2010 and **O.P.(CAT) 198/2017 & conn.** 39 connected cases confirmed by the High Court of Delhi in W.P.(C) No.1535 of 2012 and connected cases following a Division Bench decision of the Punjab and Haryana High Court against which a Special Leave Petition was unsuccessfully attempted. The applicants have also relied on the constitutional Bench decision of the Apex Court in **D.S Nakara v. Union of India** reported in **(1983) 1 SCC 305** . Another Division Bench decision of this Court in O.P(CAT) No.8/2014 confirming the order of the Tribunal in O.A.No.715/2012, against which SLP(C)No.6567/2015 and R.P.No.2565/2015 in SLP(C)No.6567/2015 were unsuccessfully filed, was also relied on. 17. We will firstly consider the applicability of the decision in **Nakara** 's case (supra) which was referred to by the Tribunal to pass orders favourable to the applicants in some of the aforementioned OAs. We have already adverted to the factual matrix involved in the original applications from which the above original petitions arise. The issue involved in the present cases is regarding the calculation of minimum revised pension in terms of para 4.2 of OM dated 1.9.2008 **O.P.(CAT) 198/2017 & conn.** 40 issued for implementation of government's decision thereunder on the recommendations of the VI[th] CPC relating to revision of pension of pre-2006 pensioners/family pensioners. At the same time, **Nakara'** s case was a case of revision of pensionary benefits and classification of pensioners into two groups by drawing a cut off line and granting the revised pensionary benefits to employees retiring on or after the cut off date. Since the criteria made applicable was 'being in service and retiring subsequent to the specified date', the Apex Court held that such criterion made applicable to earn eligibility for liberalised pension scheme would violate Article 14 of the Constitution of India, as being both arbitrary and discriminatory in nature. Essentially, in **Nakara** 's case, the Apex Court held that employees who retired prior to a specified date and those who retired thereafter formed one class of pensioners and classifying them into separate classes/groups for the purpose of pensionary benefits was not founded on any intelligible differentia, which had a rational nexus with the object sought to be achieved. In fact, the decision in **Nakara** 's case (supra) was taken **O.P.(CAT) 198/2017 & conn.** 41 into consideration by the Hon'ble Apex court while rendering the decision in **Krishnaswamy** 's case (supra). 18. In view of the nature of the rival contentions and the questions posed for consideration, we are of the considered view that it is inevitable to refer to the decision of **Krishnaswamy** 's case (supra). Paragraph 3 therein would reveal the controversy which was resolved by the said decision and it reads thus:- “In all these appeals, the controversy relates to the scale of pay recommended by the Fifth Pay Commission and corresponding acceptance of the Government by a policy decision 30-9-1997 and executive instructions dated 17.12.1998 clarified by executive instructions dated 11.5.2001.” 19. In **Krishnaswamy** 's case, the Apex Court was called upon to consider and resolve the issues in somewhat similar situation arose pursuant to the Government's decision on the implementation of the recommendations of the V[th] CPC. We are also not oblivious of the fact that pay band and grade pay in place of scale of pay are introduced only under the VI[th] CPC. In the cases on hand, it is Government's **O.P.(CAT) 198/2017 & conn.** 42 decision on the implementation and acceptance of the recommendations of the VI[th] CPC and the consequential revision of pension that led to the litigations. Consequent to the V[th] CPC recommendations, Government of India issued executive instructions as per OM dated 17.12.1998 and thereafter clarified the import and intent of the application of the policy resolution notified on 30.9.1997. The factual narration of the issues involved in the captioned original petitions, the impugned orders passed by the Tribunal and the rival pleadings in the O.As concerned would reveal that it is the policy decision for implementation and acceptance of the VI[th] Pay Commission Report that led to the litigations and as noticed hereinbefore, the main dispute is revolved around the manner of calculation of minimum revised pension in terms of para 4.2 of the OM dated 1.9.2008 carrying the policy decision of the Government in the matter of implementation and acceptance of the recommendations of the VI[th] CPC. Therefore, we are of the considered view that as regards the cases on hand, the decision in **Krishnaswamy's** case is **O.P.(CAT) 198/2017 & conn.** 43 relevant and applicable. In the said decision, the Apex Court referred to its earlier decisions in **Indian Ex-Services League v. Union of India (1991) 2 SCC 104** and in **K.L.Rathee v. Union of India** reported in **(1997) 6 SCC 7** where the decision in **Nakara** 's case was distinguished. Paragraphs 22 and 23 in **Krishnaswamy** 's case (supra) read as hereunder:- “ - In Indian Ex Services League v. Union of India, this Court distinguished the decision in Nakara case and held that the ambit of that decision cannot be enlarged to cover all claims by retirees for a demand for an identical amount of pension to every retiree, irrespective of the date of retirement even though the emoluments for the purpose of computation of pension be different.” “In K.L.Rathee v. Union of India, this Court, after referring to various judgments of this Court, has held that Nakara case cannot be interpreted to mean that emoluments of persons who retired after a notified date holding the same status, must be treated to be the same.” (underline supplied) 20. The decision of the Apex Court in **Krishnaswamy** 's case (supra) assumes relevance not only because of the aforesaid aspect but **O.P.(CAT) 198/2017 & conn.** 44 also in view of the fact that the question of application of the doctrine of merger consequent to the decision of the Special Leave Petition was dealt with thereunder. This aspect assumes relevance in view of the fact that in most of the cases, the impugned orders would reveal that the Tribunal had relied on decisions of this Court rendered relying on the High Court of Delhi confirming the orders of the Principal Bench of the Tribunal. As a matter of fact, the High Court of Delhi placed reliance on the similar decision of High Court of Punjab and Haryana against which Special Leave Petition was unsuccessfully attempted. In that context, it is also relevant to note that the order of the Tribunal in O.A.No.715/2012 was confirmed by this Court in O.P(CAT) No.8/2014 and SLP(C) No.6567/2015 filed against the same and R.P.No.2565/2015 in SLP(C) No.6567/2015 were also dismissed. Contextually, paragraphs 25 and 26 of **Krishnaswamy** 's case are worthy to be extracted and they run as follows:- 25. Lastly, it is contended that against the decision of the Delhi High Court, an SLP was dismissed by this Court on 8-7-2004 and, therefore, the doctrine of merger applies. It is **O.P.(CAT) 198/2017 & conn.** 45 not disputed that the SLP was dismissed in limine without a speaking order. This question has been set at rest by a three-Judge Bench of this Court in Kunhayammed v. State of Kerala, where this Court after referring to a two-Judge Bench, of this Court in V.M.Salgaocar & Bros. (P) Ltd v. CIT held at SCC p.375, para 22 as under:- “22. We may refer to a recent decision, by a two-Judge Bench, of this Court in V.M.Salgaocar & Bros.(P) Ltd v. CIT holding that when a special leave petition is dismissed, this Court does not comment on the correctness or otherwise of the order from which leave to appeal is sought. What the Court means is that it does not consider it to be a fit case for exercising its jurisdiction under Article 136 of the Constitution. That certainly could not be so when appeal is dismissed though by a nonspeaking order. Here the doctrine of merger applies. In that case the Supreme Court upholds the decision of the High Court or of the Tribunal. This doctrine of merger does not apply in the case of dismissal of a special leave petition under Article 136. When appeal is dismissed, order of the High Court is merged with that of the Supreme Court. We find ourselves in entire agreement with the law so stated. We are clear in our mind that an order dismissing a special leave petition, more so when it is by a non-speaking order, does not result in merger of the order impugned into the order of the Supreme Court” 26. Therefore, when the special leave **O.P.(CAT) 198/2017 & conn.** 46 petition is dismissed by the Supreme Court under Article 136 of the Constitution, the doctrine of merger is not attracted. 21. All the aforesaid aspects have to be borne in mind while considering the bone of contention in the captioned cases viz., whether for the application of para 4.2 of OM dated 1.9.2008 it is the pre-revised scale of pay in which the pensioner concerned was drawing pay at the time of retirement that is relevant and material or whether it is the post from which the pensioner concerned retired that is relevant to identify the corresponding minimum pay in the pay band and grade pay thereon that is relevant and material for implementing the Government's decision on the recommendation of the VI[th] CPC. In that context, it is very relevant to refer to paragraphs 15 to 18 of the decision in **Krishnaswamy** 's case and they read thus:- “15. It is common knowledge that the corresponding increase in any Pay Commission is of . the scale of pay and not of the post 16. The grievances raised in the two sets of appeals are the same. The basic question that arises for consideration is as to whether the executive **O.P.(CAT) 198/2017 & conn.** 47 instructions in the form of OM dated 11-5-2001 override the OM dated 17-12-1998 and are null and void. In other words, as to whether the OM dated 11-5-2001 overrides the earlier OM dated 17-12-1998 clarifying the Policy Resolution of the Government dated 30-9-1997. 17. The main thrust of the submissions of the learned counsel for the appellants is that the OM dated 11-5-2001 overrides the original OM dated 1712-1998 and creates two classes of pensioners. We are unable to accept this contention. As noticed above, the recommendations of the Fifth Pay Commission were accepted to the extent of policy resolution dated 30-9-1997. The aforesaid Policy Resolution was further clarified by issuing instructions in OM dated 17-12-1998, which were clarified by another executive instructions in OM dated 11-5-2001. It is well settled principle of law that recommendations of the Pay Commission are subject to the acceptance/rejection with modifications - of the appropriate Government. It is also well settled principle of law that a policy decision of the Government can be reviewed/altered/modified by executive instructions. It is in these circumstances that a policy decision cannot be challenged on the ground of estoppel. In the present case, the recommendations of the Fifth Pay Commission were accepted by a Policy Resolution dated 30-9-1997 that the ceiling on the amount of pension will be 50% of the highest pay in the Government. The pension of all pre-1-1-1996 retirees including pre-1986 retirees shall be consolidated as on 1-1-1996, but the consolidated pension shall not be brought on to the level of 50% of **O.P.(CAT) 198/2017 & conn.** 48 the minimum of the revised pay of the post held by the pensioner at the time of retirement. The subsequent OM dated 17-12-1998 clarified the Policy Resolution dated 30-9-1997 by executive instructions in OM dated 17-12-1998 and further clarified in the form of OM dated 11-5-2001 clarifying the contents of Policy Resolution of the Government dated 30-91997. They are both complementary to each other. Both clarify the government Policy Resolution dated 30-9-1997. The appellants are not aggrieved by the executive instructions in OM dated 17-12-1998. In our view, therefore, the contention of the appellant that the OM dated 11-5-2001 overrides the original OM dated 17-12-1998, thereby creating two classes of pensioners is absolutely ill-founded and untenable. 18. It is common knowledge that an increase in the pay scale in any recommendation of a Pay Commission is a corresponding increase in the pay scale. In our view, therefore, executive instructions dated 11-5-2001 have been validly made keeping in view the recommendations of the Pay Commission accepted by the Policy Resolution of the Government on 30-9-1997, clarified by executive instructions dated 17-12-1998. The executive instructions dated 11-5-2001 neither override the policy resolution dated 30-9-1997 nor executive instructions dated 17-12-1998 clarifying the policy resolution dated 30-9-1997. The executive instructions dated 11-5-2001 were in the form of further clarifying the executive instructions dated 17-12-1998 and do not override the same.” (Underline supplied) **O.P.(CAT) 198/2017 & conn.** 49 22. As can be seen from the extracted portions in paragraph 17 of **Krishnaswamy** 's case, the Apex Court held that it is a well settled principle of law that recommendations of the pay commission are subject to the acceptance/rejection with modifications of the appropriate Government. Furthermore, it is well settled principle of law that a policy decision of the Government can be reviewed/altered/modified by executive instructions. In paragraphs 15 and 17 thereof, the Apex Court held that it is of common knowledge that an increase 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. In that regard, it is to be noted that when a particular post carrying a particular scale of pay is abolished and at the same time, based on recommendation of pay commission a corresponding increase occurred in the said scale of pay of that abolished post, but still existing in relation to some other posts, how can it be said that the persons who retired from the said post that was abolished would not be entitled to the benefit of corresponding **O.P.(CAT) 198/2017 & conn.** 50 increase effected in that particular scale of pay despite the fact that the policy decision of the Government on the recommendations of a Pay Commission takes in, the case of the pre-revised pay scale in which the pensioner concerned was drawing salary at the time of retirement. Can such pensioners be deprived of the benefit of revision of pension solely due to the fact that the post from which he or she had retired was abolished prior to the recommendation of the pay commission? Such a contingency may also arise if merger of posts occurred subsequent to the retirement of some persons from a particular post which, on merger, cease to exist and got merged into any other particular post. We elucidated the circumstances only to emphasize the fact what is relevant is whether an increase in pay scale is recommended by the pay commission as regards the corresponding pre-revised scale of pay in which the retiree concerned was drawing pay at the time of his retirement to decide the entitlement of revision of pension pursuant to the Government decision on the implementation of the recommendations of any Pay Commission **O.P.(CAT) 198/2017 & conn.** 51 Report. In the light of the exposition of law by the Apex Court in **Krishnaswamy** 's case, an increase in the pay scale in any recommendation of pay commission can cause increase in the scale of pay and in that matter it is not the post that is to be looked into, we have no hesitation to hold that the Tribunal had gone wrong in holding otherwise. The fact that the Apex Court held while dealing with Government's decision on the recommendations of the V[th] CPC will not make the same inapplicable in regard to government decision on the recommendations of the VI[th] CPC. Going by the decision of the Tribunal in O.A Nos.21/2015, 526/2016 and 876/2016, irrespective of the scale of pay which one was drawing at the time of his/her retirement, for the purpose of revision of pay pursuant to recommendation by VI[th] CPC, the revised scale viz., the pay band and grade of the post concerned is to be taken into account and the scale of pay in which the retiree concerned was drawing his pay at the time of his retirement is irrelevant and immaterial. Such a conclusion and finding will go directly in conflict with the position settled by the **O.P.(CAT) 198/2017 & conn.** 52 Apex Court in **Krishnaswamy** 's case. 23. As noticed hereinbefore, for passing impugned orders in the original applications from which the captioned original petitions filed by Union of India and its officers arose, the Tribunal has virtually relied on a decision of a Division Bench of this Court in O.P.(CAT) No.169 of 2015 and in O.P.(CAT) Nos 4 and 8 of 2013. In both the decisions, the decision of the Principal Bench of the CAT in O.A.No.655 of 2010 and connected cases, confirmed by the High Court of Delhi in W.P.(C) No.1535 of 2012 and connected cases rendered by following a Division Bench decision of Punjab and Haryana High Court, was referred to. It is also to be noted that the fact that Special Leave Petition filed against the judgment of the Punjab and Haryana High Court was dismissed by the Hon'ble Apex Court was also taken note of in those decisions. On our anxious consideration of those decisions, we find that the decision of the Hon'ble Apex Court in **Krishnaswamy** 's case (supra) was not referred to and therefore, it can only be taken that the Division Benches were **O.P.(CAT) 198/2017 & conn.** 53 persuaded to pass those judgments without referring to the decision in **Krishnaswamy** 's case. In other words, those decisions are rendered per incuriam inasmuch as they were rendered without referring to and looking into the binding decision of the Hon'ble Apex Court in **Krishnaswamy** 's case. There is no case for the applicants who are petitioners or respondents in the captioned original petitions that the Apex Court dismissed the SLPs filed against the judgment of the Punjab and Haryana High Court through a speaking order. True that the SLP was dismissed. On perusal of the said order, made available for our perusal, it is evident that the SLP was dismissed without assigning any specific reason or reasons and therefore, it can be safely said that it was dismissed by a non-speaking order. It is also true that SLP No.6567 of 2015 filed against the judgment of this Court in O.P. (CAT) No.8/2014 confirming the order of the Tribunal in O.A.No.715/20125 and R.P.No.2565/2015 filed in SLP No.6567/2015 were also dismissed. But the said situation and positions cannot denude the binding effect of the decision of the Hon'ble Apex Court in **O.P.(CAT) 198/2017 & conn.** 54 **Krishnaswamy** 's case as regards the point in issue. It is in the said factual position obtained in this case that paragraphs 25 and 26 of the the decision of the Apex Court in **Krishnaswamy** 's case extracted hereinbefore, assumes relevance. In the light of the said decision, there cannot be any doubt with respect to the position that when SLP was dismissed by a non-speaking order, it would not result in merger of the order impugned into the order of the Supreme Court so as to attract the doctrine of merger. 24. In the contextual situation, the decisions of the Apex Court in **Col. B.J.Akkara (Retd.) v. Government of India and others** reported in **(2006) 11 SCC 706** would assume relevance. In paragraph 25 therein the Apex Court held thus:- 25.A similar contention was considered by this Court in State of Maharashtra v.Digambar. This Court held:(SCC p.691, para 16) “Sometimes, as it was stated on behalf of the State, the State Government may not choose to file appeals against certain judgments of the High Court rendered in writ petitions when they are considered as stray cases and not worthwhile invoking the discretionary jurisdiction of this Court under Article 136 of the Constitution, for **O.P.(CAT) 198/2017 & conn.** 55 seeking redressal therefor. At other times, it is also possible for the State, not to file appeals before this Court in some matters on account of improper advice or negligence or improper conduct of officers concerned. It is further possible, that even where SLPs are filed by the State against judgments of the High Court, such SLPs may not be entertained by this Court in exercise of its discretionary jurisdiction under Article 136 of the Constitution either because they are considered as individual cases or because they are considered as cases not involving stakes which may adversely affect the interest of the State. Therefore, the circumstance of the non-filing of the appeals by the State in some similar matters or the rejection of some SLPs in limine by this Court in some other similar matters by itself, in our view, cannot be held as a bar against the State in filing an SLP or SLPs in other similar matter(s) where it is considered on behalf of the State that nonfiling of such SLP or SLPs and pursuing them is likely to seriously jeopardise the interest of the State or public interest.” 25. In the contextual situation, it is also relevant to refer to **Sethumadhavan** 's case (supra). In the said case, the respondent therein filed a suit for relief of enhancement of pension on the ground of revised pay scale. The Tribunal held that the respondent therein **O.P.(CAT) 198/2017 & conn.** 56 was holding the post of Train Examiner on the date of his superannuation and hence, his pension had been correctly fixed and his pension could not be on par with the pay scale of Junior Engineer Gr.II. The respondent therein filed writ petition before the High Court of Madras against the order of the Tribunal and the High Court allowed the writ petition and reversed the order of the Tribunal. The appeal was preferred before the Hon'ble Apex Court in the said circumstances. The Apex Court held that the High Court committed an error in assuming that the post of Train Examiner was redesignated as Junior Engineer Gr.II and the said wrong conclusion was the basis of the judgment of the High Court. Further, it was held:- “15.Unfortunately, the High Court has not even referred to this judgment while taking a decision in favour of the Respondent. Since the issue is squarely covered by the decision of this Court in ” . **Krishnaswamy** , the appeal must be allowed (underline supplied) As noticed hereinbefore, in these cases also, the orders favourable to the applicants were passed without reference to the principles laid **O.P.(CAT) 198/2017 & conn.** 57 down in **Krishnaswamy** 's case (supra) and as we have already noticed the declaration of the Tribunal that in respect of revision of pay based on Government decisions for implementation on the recommendations of a Pay Commission Report, the pre-revised scale is not relevant, but what is relevant is the post held by the pensioner concerned is directly in conflict with the principles laid down by the Apex Court in **Krishnaswamy** 's case. Consequently, the challenge against the orders in O.P.(CAT) Nos. 114 of 2018, 277 of 2017 and 198 of 2017 has to succeed and the challenge against the orders in O.P.(CAT) Nos. 272 of 2017 and 5 of 2019 is to fail. 26. The VI[th] CPC introduced 4 Pay Bands along with Grade Pay covering the then existing 32 pay scales and the remaining two pay scales viz., the one applicable to the post of Secretary and the other to the post of Cabinet Secretary were done away with and in their case they have been granted fixed pay. O.M. dated 1.9.2008 was issued for implementation of the Government's decision on the recommendation of the VI[th] CPC as relates revision of pension of pre-2006 **O.P.(CAT) 198/2017 & conn.** 58 pensioners/family pensioners. Going by para 4.1 therein, the pension/family pension of existing pre-2006 pensioners/family pensioners will be consolidated with effect from 1.1.2006 by adding together:- - i. The existing pension/family pension. - ii. Dearness Pension, where applicable. - iii. Dearness Relief upto AICPI (IW) average index 536 (Base year 1982=100) i.e.@ 24% of Basic Pension/Basic family pension plus dearness pension as admissible vide this Department's O.M.No.42/2/2006-P&PW(G) dated 5.4.2006. Para 4.2 therein ensures the minimum revised pension and it reads thus:- - 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. Thus, a scanning of paras 4.1 and 4.2 of the said O.M. dated 1.9.2008 **O.P.(CAT) 198/2017 & conn.** 59 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 case especially in the light of the decision in **Krishnaswamy's** **O.P.(CAT) 198/2017 & conn.** 60 case (supra). As already noticed, the Apex Court in **Krishnaswamy's** 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'. 27. Having answered the common question as above, we will now deal with the captioned original petitions. **O.P.(CAT) 198/2017 & conn.** 61 28. In O.P.(CAT)No.272/2017, evidently, the Tribunal had not interfered with the fixation of the revised pension of the petitioner as Rs.4920/- w.e.f. 1.1.2006. The claim of the petitioner is for its revision taking the grade pay as Rs.2800/- instead of Rs.2400/-, the grade pay corresponding to the pre-revised pay scale from which the petitioner had retired. We have narrated in detail, the facts of the case. So long as Rs.2400/- is the grade pay corresponding to the pre-revised pay scale from which the petitioner/applicant had retired, he is entitled only to get the said amount as the grade pay. His claim for Rs.2800/-, not being the grade pay corresponding to the pre-revised pay scale from which the applicant-petitioner had retired is absolutely unsustainable, in the light of O.M dated 1.9.2008. In the result, O.P. (CAT)No.272/2017 is dismissed. 29. In O.P.(CAT)No.198/2017, the challenge is against the direction in the order in O.A.No.21/2015 to re-fix the pension of the applicant/the respondent herein at Rs.37,750/-, being 50% of Rs.75,500/- which is the minimum pay in the HAG + scale of **O.P.(CAT) 198/2017 & conn.** 62 Rs.75,500-80,000/- and also the further direction to pass consequential orders and to pay arrears of pension pursuant to such re-fixation. The respondent retired from ITAT as Accountant Member on 10.10.1994. At the time of his retirement, he was drawing salary in the scale of pay of Rs.7300 - 7600/-. On implementation of the Government's decision on the recommendations of the V[th] CPC, his pension was revised to Rs.11200/- w.e.f. 1.1.1996 being 50% of Rs.22,400/- which is the minimum pay of the replacement scale of Rs.22,400-525-24500/- for the erstwhile scale of pay of Rs.7300-7600/-. There is no dispute with respect to the aforesaid aspects. A scanning of the pleadings of the respondent herein/the applicant raised in O.A.No.21 of 2015 would reveal that it is the case pleaded by him. True that he got a further case. As already noticed, he retired from service as Accountant Member of ITAT on 10.10.1994 and he was then drawing salary in the scale of pay of Rs.7300-7600/-. According to him, later AnnexureA8 dated 6.10.1999 was issued. It would reveal that the pay scales of the post of Members of ITAT was upgraded from the pay scale of **O.P.(CAT) 198/2017 & conn.** 63 Rs.7300-7600/- to the pay scale corresponding to Rs.7300-8000/(pre-revised) at par with the Members of CECAT and placed the post of Members in the ITAT in the pay scale of Rs.22,400-600-26,000/corresponding to the pre-revised pay scale of Rs.7300-8000 w.e.f. 1.1.1996. Evidently, the contention of the respondent-applicant is that he was entitled to receive pension on the basis of replacement scale for Rs.7300-8000/- viz., Rs.22400-26000/- instead of the scale of pay of Rs.22,400-24500/-. After having stated thus, he went on to give explanation as to why he had not initiated steps for getting revised his pension in the revised pay scale of Rs.22,400-600-26,000/-. It is stated thus:- “In this connection, it is quite pertinent to refer to the instructions dated 17/12/1998 issued in as F.No.45/10/98/-P&PW(A) (copy produced Annexure-A9) regarding the implementation of Government's decisions on the recommendations of the 5[th] CPC relating to retirement benefits. In this O.M. in para. 1 it is stated that the President is now pleased to decide that w.e.f 1.1.1996, the pension of all pensioners irrespective of their date of retirement shall not be less than 50% of the minimum of pay in the revised scale of Pay introduced w.e.f.1.1.1996. Now it may be seen **O.P.(CAT) 198/2017 & conn.** 64 that by order dated 06.10.1999 the pay scale introduced for the members is the pre-5[th] Pay Commission scale of Rs.7300-8000. The equivalent scale of pay implemented on the recommendations of 5[th] Pay Commission w.e.f.1.1.1996 is Rs.22400-600-26000. Hence the pension drawn by him from 1.1.1996 was with reference to this scale. Since the pension of Rs.11200 drawn by him was 50% of Rs.22400 which was the minimum of both the scales viz., Rs.22400-525-24500 & 22400-600-26000, the necessity of seeking a revision did not arise and hence he did not initiate any steps in this regard.” It is his further case that subsequently, while giving effect to the recommendations of the VI[th] CPC his pension was correctly re-fixed at Rs.37,750/-, being 50% of the minimum of the HAG + scale of Rs.75500-80000 which is the replacement scale for Rs.22400-60026000 recommended by the VI[th] CPC. It is to be noted that the very case of the petitioners viz., the respondents therein is that re-fixation of the applicant's pension at Rs.37,750/-, being 50% of the minimum of the HAG + scale of Rs.75500-80000 is a mistake and that is why it was immediately corrected by issuing Annexure-A1 revised pension order dated 14.9.2013. As per the same, his pension was revised to **O.P.(CAT) 198/2017 & conn.** 65 Rs.33500/-, being 50% of Rs.67000/- which is the minimum in the Pay Band of Rs.67,000-79000/- with Grade Pay Nil. Annexure-A1 is marked to the applicant as well. Though his pension was thus revised as per Annexure-A1 dated 14.9.2013, the applicant had not challenged the same at any point of time. In fact, in O.A.No.21 of 2015 also, he has not chosen to challenge the same and he has only sought for a direction to the respondents therein/the petitioners herein to restore his pension as Rs.37,750/-, being 50% of Rs.75,500/- which is the minimum in the HAG + scale of Rs.75,500 - 80000 applicable to the posts of Members of the ITAT. It is thus evident that by the time he approached the Tribunal in the year 2017 more than three years had elapsed since the revision of his pension as per Annexure-A1 dated 14.9.2013. Thus, the very case pleaded by the applicant itself would reveal that he had not challenged fixation of his revised pension in the scale of pay of Rs.22400-525-24500/- which is the replacement scale for the pre-revised scale of Rs.7300-7600/- and sought for its fixation in the pay scale of Rs.22400-600-26000 which is the replacement **O.P.(CAT) 198/2017 & conn.** 66 scale for the pre-revised scale of Rs.7300-8000/-. The upgradation of the pay scale of Rs.7300-8000 was given retrospective effect only from 1.1.1996 and whereas the respondent-applicant had retired from service much earlier viz., on 10.10.1994. The Hon'ble Apex Court in **Indian Ex-Services League** v. **Union of India [(1991) 2 SCC 104]** distinguished the decision in **Nakara's** case and held that the ambit of **Nakara's** case could not be enlarged to cover all claims by retirees for a demand for an identical amount of pension to every retiree, irrespective of the date of retirement even though the emoluments for the of of be different. In purpose computation pension **Krishnaswamy's** case, the Apex Court also referred to its earlier decision in **K.L.Rathee's** case (supra) whereunder it was held that **Nakara's** case could not be interpreted to mean that emoluments of persons who retired after a notified date holding the same status, must be treated to be the same. Evidently, the respondent/applicant did not challenge successfully the order dated 6.10.1999 (Annexure-A8 in O.A.No.21/2015 whereby the Ministry of Law, Justice and Company **O.P.(CAT) 198/2017 & conn.** 67 Affairs upgraded the pay scale for the post of Member, ITAT from Rs.7300-7600 to Rs.7300-8000 with retrospective effect only from 1.1.1996. So also, his own pleadings would reveal that he had also not cared to assail fixation of his revised pension earlier, based on the recommendation of the V[th] CPC at Rs.11,200/- w.e.f 1.1.1996, taking it as 50% of the minimum of the replacement scale of Rs.22400-52524500/-. When that be the position in view of the availability of the Pay Band, pursuant to the VI[th] CPC, of Rs.67000-79000 with Grade Pay Nil as the replacement scale for Rs.22400-525-24500/- how can the applicant/respondent herein, as a matter of right claim Rs.37,750/-, being 50% of the HAG + scale of Rs.75500-80000/-? The factum of absence of challenge against the revised pension order dated 14.9.2013 whereby his pension was revised to Rs.33500/-, being 50% of Rs.67000/-, which is the minimum in the Pay Band of Rs.6700079000/- was also not taken due note of by the Tribunal, in the light of the aforementioned decisions. To sustain the claim of the applicant for restoration of his pension at Rs.37,750/-, being 50% of the pay of **O.P.(CAT) 198/2017 & conn.** 68 Rs.75,500/- which is the minimum in the HAG + scale of Rs.7550080000, the Tribunal relied on para 4.2 of O.M. dated 1.9.2008 and also the Full Bench decision of Principal Bench of the Tribunal in O.A.No.655 of 2010 and connected cases upheld by the High Court of Delhi relying on a decision of the Punjab and Haryana High Court. 30. In view of the admitted position that as on 1.1.1996, the respondent was not in service, he had no occasion to draw salary in the upgraded scale of Rs.7300-8000, he retired from service much earlier to its introduction, he was drawing salary in the scale of pay of Rs.7300-7600 at the time of his retirement, the revised scale of Rs.7300-7600 is Pay Band of Rs.67000-79000/- with Grade Pay Nil, his pension was revised as per Annexure-A1 dated 14.9.2013 at Rs.33500/-, being 50% of Rs.67000/- which is the minimum in the Pay Band of Rs.67000 - 79000/- with no Grade Pay, he had not challenged the said revision effected as early as on 14.9.2013 till today and on applying the decision of the Hon'ble Apex Court in **Krishnaswamy's** case as also the provisions under para 4.1 of O.M. **O.P.(CAT) 198/2017 & conn.** 69 dated 1.9.2008 to those undisputed and indisputable facts we have no hesitation to hold that it is perverse appreciation of irrelevant facts and failure to properly take into account the relevant facts that culminated in the impugned order. In such circumstances, this O.P. is allowed. Accordingly, the order in O.A.No.21 of 2015 is set aside and consequently, the said O.A. will stand dismissed. 31. In O.P(CAT)No.5 of 2019 arising from O.A.No.59 of 2018, the petitioner/applicant had retired voluntarily with effect from 6.1.1991 while working in the Defence Establishment under the 4[th] respondent as a Machinist (High Skilled Gr.I). At the time of his voluntary retirement, he was drawing salary in the scale of pay of Rs.1320-30-1560-40-2040. Its corresponding pay scale under the V[th] CPC that was accepted by the Government was Rs.4000-100-6000 and the corresponding pay band under the VI[th] CPC is pay band 520020200+GP 2400/-. The facts of the case, referred hereinbefore, would reveal that much later to his voluntary retirement, Annexure R(i) dated 14.6.2010 was issued by the Government of India in the matter **O.P.(CAT) 198/2017 & conn.** 70 of restructuring of the Cadre of Artisan Staff in Defence Establishment in modification of the VI[th] CPC recommendations. In the light of the decision of the Apex Court in **Krishnaswamy** 's case (supra), recommendations of the Pay Commissions are subject to the acceptance/rejection with modifications of the appropriate Government. OFB, Kolkata then issued Annexure-R(j) dated 13.12.2010 carrying necessary instructions in the matter of implementation of Annexure R(i). Going by those orders, Highly Skilled Cadre was split into (i) Highly Skilled Grade-I and (ii) Highly Skilled Grade-II. As per the revised ratio, the seniormost Highly Skilled employees are to be placed in Highly Skilled Grade-I and the remaining Highly Skilled employees are to be placed in Highly Skilled Grade-II. The placement of individuals belonging to Highly Skilled Employee Cadre was made w.e.f 1.1.2006 only. As stated earlier, the petitioner voluntarily retired much prior to such placement based on cadre restructuring. The claim of the petitioner is for a pension of Rs.5,585/-, being 50% of the minimum pay in the revised **O.P.(CAT) 198/2017 & conn.** 71 pay band plus grade pay applicable to Highly Skilled Grade-I. True that PB-I of Rs.5200-20200 with a Grade Pay of Rs.2800/- is applicable to Machinist Gr-I pursuant to the implementation of VI[th] CPC recommendations with modifications under Annexure -R(i) and Annexure- R(j). About 15 years prior to the cadre restructuring under Annexures-R(i) and R(j), the petitioner retired voluntarily from service and therefore, obviously, his pension was revised taking into account the Pay Band Rs.5200-20200 with Grade Pay of Rs.2400/which is the corresponding Pay Band to the pre-revised scale of Rs.1320-30-1560-40-2040. In such circumstances, there is no justification or reason to claim for applying the Grade Pay of Rs.2800/-.We have already held based on O.M dated 1.9.2008 that the question of applying para 4.2 therein 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 pensioner had retired. If the Grade Pay is taken as Rs.2400/- and the minimum revised pension is calculated in terms of **O.P.(CAT) 198/2017 & conn.** 72 para 4.2 of the said O.M, the petitioner is entitled only to get Rs.4920/- and at the same time, on being calculated his revised pension in terms of para 4.1, he was already sanctioned Rs.5134/- as the revised basic pension as on 1.1.2006. We have no hesitation to hold, in the circumstances, that the Tribunal had rightly relied on the decision in **Krishnaswamy'** s case (supra) and also O.M dated 1.9.2008 in passing the impugned order in O.P.(CAT) No.5/2019 whereby O.A No.59/2018 was dismissed. It requires no interference. Consequently, O.P.(CAT) No.5/2019 is dismissed. 32. In O.P.(CAT)No.277 of 2017 arising from O.A.No.526/2016, the respondent herein viz., the applicant therein retired from the post of Deputy Postmaster (HSG-I) on 30.9.1996 and at the time of retirement, his pay was in the scale of pay of Rs.6500 - 10500/-. With the implementation of the VI[th] CPC recommendations, the pre-revised pay scales Rs.6500-10,500/-, 7450-11500 and 750012000 were merged and replaced by PB2 viz., Rs.9000-34800 with Grade Pay of Rs.4600/- w.e.f. 1.1.2006. The case of the **O.P.(CAT) 198/2017 & conn.** 73 respondent/applicant is that pursuant to the order of the Tribunal in O.A.No.851/1998, evidently, moved after his retirement from service, he was given retrospective promotion as LSG w.e.f. 1.10.1996, as HSG-II w.e.f. 19.6.1990 and as HSG-I w.e.f. 19.4.1996. This fact is indisputable and in fact, not disputed by the petitioners herein viz., the respondents in the said O.A. On implementation of VI[th] CPC recommendations, the pay scale of HSG-I was upgraded to Rs.745011500 and then revised to PB2 with a grade of Rs.4600/-, w.e.f. 1.1.2006, i.e., more than 9 years since the retirement of the respondent herein/the applicant. In the circumstances, the applicant/respondent herein claimed Rs.9230/- as his pension w.e.f. 1.1.2006 relying on para 4.2 of the O.M. dated 1.9.2008 and contending that as per CCS (Revised Pay) Rules, 2008, the pay scale of Deputy Postmaster (HSGI) was revised to Rs.9300-34800 with a Grade Pay of Rs.4600/- w.e.f. 1.1.2006. In elaboration of the same, it is further contended that as per the fitment table annexed to CCS (Revised Pension) Rules, the minimum pay in the Pay Band of Rs.9300-34800 with a Grade Pay of **O.P.(CAT) 198/2017 & conn.** 74 Rs.4600/- is Rs.18,460/- and Rs.9230/-, being 50% of Rs.18460/-, he is entitled to get Rs.9230/- as his pension w.e.f. 1.1.2006. In the O.A., he mainly sought for 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; - (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.18,460/- i.e., Rs.9230/- 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.” 33. At this juncture, it is to be noted that before the Tribunal, the respondents therein/the petitioners herein had filed an additional reply statement contending that the post which were in the pre-revised scale of Rs.6500-200-10,500/- which was granted a normal replacement pay structure Grade Pay of Rs.4,200/- in the Pay Band-2, will be granted grade pay of Rs.4,600/- in pay band-2 corresponding to the pre-revised scale of Rs.7,450-11,500, w.e.f. 1.1.2006. They also stated therein that since the applicant/the respondent herein was not in **O.P.(CAT) 198/2017 & conn.** 75 service as on 1.1.2006, the aforesaid replacement pay structure is not applicable to him. In fact, earlier, a rejoinder was filed by the applicant, before the Tribunal. 34. The Tribunal considered the rival contentions. Paragraph 8 of the impugned order would reveal that the Tribunal held as follows:- “As the aforequoted instructions in OM dated 1.9.2008 remains in tact without any executive or judicial interference, the pension sanctioning authorities are bound to follow the aforesaid paragraph 4.2 of the aforesaid OM while revising the pension of the pre-1-1-2006 pensioners. Since para 4.2 being the policy decision of the Government of India, the same has to be the guiding principle for determining the VI[th] CPC revised pension of pre-1.1.2006 pensioners. In the case of the applicant, as observed earlier the pay scales from which he had retired has to be reckoned on the basis of the pay scale of HSG-I prevailing at the time of his retirement. Referring to Annexure A4 fitment table annexed to CCS (RP) Rules, 2008 applicant points out that the VI[th] CPC revised pay scale of Postmaster HSG-I is Rs.9,30034,800/- with Grade Pay of Rs.4,600/- with effect from 1.1.2006. Therefore, even though the applicant retired from service in the pay scale of Rs.6,500/--10,500/-, as he was given the HSG-I grade after his retirement by virtue of a court decision, the pay scale applicable to HSG- **O.P.(CAT) 198/2017 & conn.** 76 I at the time of his retirement should be his pay pre-revised pay in terms of paragraph 4.2 of OM dated 1.9.2008. Since the corresponding revised pay of Deputy Postmaster HSG-I after the VI[th] 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 pensioner.” Para 8, as extracted above, would thus reveal that as per the impugned order, the Tribunal held that para 4.2 of O.M. dated 1.9.2008 being the policy decision of the Government of India, it had to be the guiding principle for determining the V[th] CPC revised pension of pre-2006 pensioners. The Tribunal further held that even though the applicant had retired from service in the pay scale of Rs.6500-10500/-, as he was given the HSG-I grade after his retirement by virtue of a court decision, the pay scale applicable to HSG-I at the time of his retirement should be his pay pre-revised pay in terms of paragraph 4.2 of O.M. dated 1.9.2008. Paragraph 6 of the impugned order would **O.P.(CAT) 198/2017 & conn.** 77 reveal that after taking note of his retrospective promotion as HSG-I w.e.f. 19.4.1996, the Tribunal held that the revised pension of the applicant/respondent herein has to be based on the pay scale of HSG-I that was applicable as on the date of his superannuation on 30.9.1996. What exactly was the pay scale applicable to HSG-I is not specifically stated by any of the parties. But that is not very much relevant in the circumstances obtained in this case. 35. As already stated, on implementation of the recommendations of the VI[th] CPC, three pre-revised pay scales of Rs.6500-200-10,500/-, Rs.7450-225-11,500/- and Rs.7500-25012000/- were merged in the Pay Band-2 viz., Rs.9300-34800/-. The findings of the Tribunal that the applicant is entitled to PB-2 of Rs.9,300-34,800/- is not actually disputed by the petitioners herein/the respondents therein, as can be seen from the pleadings in this Original Petition. This is evident from paragraph 3 of the O.P. wherein they have given in detail how they arrived at Rs.8842/- as the revised pension of the applicant/the respondent herein as per VI[th] CPC as also **O.P.(CAT) 198/2017 & conn.** 78 the calculation under para 4.2 of O.M. dated 1.9.2008. They would reveal that the petitioners themselves took the pay band applicable to the respondent herein/the applicant as per the VI[th] CPC as 930034800/-. The pleadings of the respondent herein/the applicant in paragraph 6 of the O.A. and ground `A' therein would reveal that even according to him, on implementation of the recommendations of the VI[th] CPC, the Pay Band to which he is entitled is PB-2 of Rs.930034,800/-. Thus, on the pay band applicable to the applicant for revising his pension, there is no dispute at all. 36. The question therefore is whether the Grade Pay applicable is Rs.4600/- as contended by the applicant/respondent herein or Rs.4200/- as contended by the petitioners/the respondents therein. We have already taken note of the fact that in view of the decision of the Apex Court in **Krishnaswamy's** case and also in view of para 2 of O.M. dated 1.9.2008 for considering the revised pension in terms of para 4.2 of O.M. Dated 1.9.2008, the minimum pay in the scale of pay from which the pensioner concerned had retired is the first relevant **O.P.(CAT) 198/2017 & conn.** 79 factor. The finding to this effect in paragraph 8 of the impugned order is not at all challenged by the respondent herein/the applicant as well. Now, that there is no dispute regarding the applicable pay band as PB2 of Rs.9300-34800/- the question is whether Grade Pay should be taken as Rs.4600/- or as Rs.4200/-. Even according to the respondent herein/the applicant, the scale of pay at the time of his retirement was Rs.6500-10500/-. True that thereafter, he was given retrospective promotion as HSG-I w.e.f. 19.4.1996 and therefore, it has to be deemed, rather, taken legally that he had retired as HSG-I on 30.9.1996. But then, the pay scale of Rs.6500-10500/- was upgraded to Rs.7450-11500 and it was revised to PB-2 of Rs.9300-34,800/- only w.e.f. 1.1.2006. In other words, pay structure of PB2 of Rs.930034800/- with Grade Pay of Rs.4600/- came into effect only on 1.1.2006 and the petitioner had retired from service more than 9 years prior to 1.1.2006. In short, he had no occasion to work even for a day in a post carrying PB2 of Rs.9300-34800/- with Grade Pay of Rs.4600/-. We have already taken note of the fact that in the **O.P.(CAT) 198/2017 & conn.** 80 additional reply statement filed by the petitioners herein before the Tribunal, they had stated that the post which were in the pre-revised scale of Rs.6500-200-10,500/- as on 1.1.2006 was granted a normal replacement pay structure Grade Pay of Rs.4,200/- and obviously, in terms of para 3 of MOF O.M.F.No.1/11 2008-1C dated 13.11.2009, the posts which were in the pre-revised scale of Rs.6500-200-10500 on 1.1.2006 and which were granted the normal replacement pay structure of grade pay of Rs.4200/- in the pay band PB-2, will be given grade pay of Rs.4,600/- in the pay band PB-2 corresponding to the pre-revised scale of Rs.7450-11500 with effect from 1.1.2006. This statement in the additional reply statement is not controverted. 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 **O.P.(CAT) 198/2017 & conn.** 81 of implementation on the recommendations of the VI[th ] 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 VI[th] 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 VI[th] 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 **O.P.(CAT) 198/2017 & conn.** 82 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.930034,800/- 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 **O.P.(CAT) 198/2017 & conn.** 83 purpose of calculating his revised pension based on the decision in implementing the recommendations of the VI[th] CPC. Hence, the calculation of revised pension as per VI[th ] 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 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 **O.P.(CAT) 198/2017 & conn.** 84 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. 38. O.P.(CAT)No.114 of 2018 is arising from the order in O.A.No.876/2016. The respondent herein/the applicant claimed revised pension of Rs.8345/- w.e.f 1.1.2006, being 50% of the minimum pay in revised pay band of Rs.9300-34800 and grade pay of the post from which he retired. Though the petitioners herein resisted the claims and contentions of the applicant, as per the impugned order, the Tribunal granted the reliefs sought for and held that he would be entitled to 50% of the minimum of the pay in the pay band of Rs.9300-34800 plus grade pay of the post of Inspector of Income Tax viz., Rs.8345/-, as revised pension w.e.f 1.1.2006. We have already **O.P.(CAT) 198/2017 & conn.** 85 held in the light of the decision in **Krishnaswamy** 's case (supra) that increase 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. In such circumstances, the Tribunal should have taken into consideration the pay band corresponding to the pre-revised scale of pay in which the respondent/the applicant was drawing pay at the time of his retirement and at the same time, should not have ordered revision of pension taking into account the revised pay scale viz., pay band applicable to the post of Inspector of Income Tax, the post from which he retired. Since the Tribunal had taken into account the revised scale of pay/pay band applicable under the VI[th] CPC recommendations for passing orders on the aforesaid lines, the impugned order carrying such directions and findings can only be held as one in conflict with the decision of the Apex Court in **Krishnaswamy** 's case. When that be the circumstances, the impugned order in O.A.876 of 2016 challenged in O.P(CAT)No.114 of 2018 is liable to succeed. In the circumstances, the original petition **O.P.(CAT) 198/2017 & conn.** 86 is allowed. The order dated 31.08.2017 in O.A.No.876 of 2016 passed by the Tribunal is set aside and consequently, the O.A will stand dismissed. In view of the aforesaid judgments, if recovery is required in the case of any of the applicants, the question whether the amount already paid should be recovered shall be decided with notice to the applicant concerned and in the light of the decisions of the Hon'ble Apex Court in **State of Punjab V. Rafiq Masih (White Washer) [2015 (1) KLT 429 (SC)]** and also in **High Court of Punjab and Haryana and others v. Jagdev Singh [(2016) 14 SCC 267]** , whichever is applicable to the facts of each case. ## **Sd/-** **C.T.RAVIKUMAR** **JUDGE** **Sd/-** **V.G.ARUN JUDGE** **O.P.(CAT) 198/2017 & conn.** 87 ## **APPENDIX OF OP (CAT) 198/2017** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE OA NO. 21/2015 DATED 08.01.2015 FILED BY THE RESPONDENTS BEFORE THE CAT, ERNAKULAM BENCH.** **EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT IN OA NO. 21/2015 DATED 23.09.2015, FILED BY THE PETITIONERS.** **EXHIBIT P3 TRUE COPY OF THE REJOINDER DATED 19.11.2015, FILED BY THE APPLICANT.** **EXHIBIT P4** **TRUE COPY OF THE ADDITIONAL REPLY STATEMENT DATED 08.02.2016, FILED BY THE PETITIONERS.** **EXHIBIT P5 TRUE COPY OF THE COMMON ORDER IN OA NO. 180/00021/2015 DATED 29.07.2016 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** 88 ## **O.P.(CAT) 198/2017 & conn.** ## **APPENDIX OF OP (CAT) 272/2017** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 PHOTOCOPY OF ORIGINAL APPLICATION OA NO. 743/2014. EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT. EXHIBIT P3 TRUE COPY OF THE REJOINDER. EXHIBIT P4 TRUE COPY OF THE COMMON ORDER IN OA NO. 743/2014 DATED 17.7.2015. EXHIBIT P5 TRUE COPY OF THE ORDER NO. GI/C/DAD/COURT CASE/III DATED 29.12.2015. EXHIBIT P6 TRUE COPY OF THE MISCELLANEOUS APPLICATION NO. 606/2016. EXHIBIT P7 TRUE COPY OF THE REPLY STATEMENT. EXHIBIT P8 TRUE COPY OF THE LETTER NO. GI/C/DAD/COURT CASE/III DATED 17.8.2016. EXHIBIT P9 TRUE COPY OF THE REVIEW APPLICATION. EXHIBIT P10 TRUE COPY OF THE ORDER IN RA NO. 21/2017 IN OA NO. 743/2014 DATED 19.5.2017. RESPONDENTS' EXHIBITS: EXHIBIT R1(A) TRUE COPY OF THE OM DATED 11.05.2001 OF THE ADDITIONAL SECRETARY (PENSION), DEPARTMENT OF PENSION & PENSIONER'S WELFARE.** 89 ## **O.P.(CAT) 198/2017 & conn.** **EXHIBIT R1(B) TRUE COPY OF THE OM DATED 27.12.2006 OF THE DIRECTOR, DEPARTMENT OF PENSION & PENSIONER'S WELFARE, NEW DELHI EXHIBIT R1(C) TRUE COPY OF THE OM NO.38/37/08-P&PW(A) DATED 06.04.2016.** **O.P.(CAT) 198/2017 & conn.** 90 ## **APPENDIX OF OP (CAT) 277/2017** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE OA NO.180/00526/2016 DATED 23.06.2015 FILED BY THE RESPONDENT BEFORE THE CAT,ERNAKULAM BENCH** **EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT DATED 21.10.2016 FILED BY THE PETITIONERS** **EXHIBIT P3 TRUE COPY OF THE REJOINDER DATED NIL.11.2016 FILED BY THE RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE ADDL.REPLY STATEMENT DATED 20.01.2017 FILED BY THE PETITIONERS** **EXHIBIT P5 TRUE COPY OF THE ORDER IN OA.NO.180/00526/2016 DATED 16.03.2017,OF THE CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH.** **O.P.(CAT) 198/2017 & conn.** 91 ## **APPENDIX OF OP (CAT) 114/2018** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1: TRUE COPY OF THE OA NO.180/00876/2016 DATED 15.10.2016 FILED BY THE RESPONDENTS BEFORE THE CAT, ERNAKULAM BENCH.** **EXHIBIT P2: TRUE COPY OF THE REPLY STATEMENT IN O.A.NO.180/00876/2016, DATED 26.7.2017. EXHIBIT P3: TRUE COPY OF THE ORDER IN OA NO.180/00876/2016 DATED 31.8.2017, OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** **O.P.(CAT) 198/2017 & conn.** 92 ## **APPENDIX OF OP (CAT) 5/2019** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 PHOTOCOPY OF OA NO. 59/2018 FILED BY THE PETITIONER BEFORE THE HON'BLE TRIBUNAL.** **EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT. EXHIBIT P3 TRUE COPY OF THE REJOINDER FILED BY THE APPLICANT.** **EXHIBIT P4 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT. EXHIBIT P5 TRUE COPY OF THE ORDER DT. 5.11.2018 IN OA NO. 59/2018 OF THE CAT, ERNAKULAM BENCH.** ## **RESPONDENTS' EXHIBITS:NIL** ## **spc/**