Sree Devi V and K. Muraleedharan v Union of India and Others (OP (CAT) No.49 of 2024)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ## **`&`** ## **`THE HONOURABLE MR. JUSTICE EASWARAN S.`** ``` TUESDAY, THE 3RD DAY OF JULY 2024 / 11TH ASHADHA, 1946 ``` ``` OP (CAT) NO. 49 OF 2024 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 19.05.2023 IN OA NO.821 OF 2019 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH ``` ## `PETITIONER/S:` ``` 1SREEDEVI.V , AGED 77 YEARS W/O RETD. ASSISTANT ENGINEER LATE V. K GANGADHARAN DOORDARSAN, RESI: 11D, ALUKKAS CASTLE, CIVIL LANE ROAD, AYYANTHOLE, THRISSUR, ., PIN - 680003 2K. MURALEEDHARAN, AGED 83 YEARS S/O LATE NARAYANAN NAIR, RETD. ASSISTANT ENGINEER, ALL INDIA RADIO, KURUMATH HOUSE, KARALAM, THRISSUR ., PIN - 680711 BY ADVS. G.RANJITA SHIFANA SHAFEEQ ASHITHA PAULY ``` ## `RESPONDENT/S:` |`1`|`UNION OF INDIA,`| |---|---| ||`REPRESENTED BY THE SECRETARY, MINISTRY OF PERSONNEL`| ||`PUBLIC GRIEVANCES & PENSION DEPARTMENT OF PENSION`| ||`AND PENSIONERS WELFARE, LOK NAYAK BHAVAN, NEW`| ||`DELHI, PIN - 110001`| |`2`|`THE SECRETARY,`| ||`MINISTRY OF INFORMATION AND BROADCASTING NEW DELHI,`| ||`PIN - 110001`| |`3`|`THE DIRECTOR GENERAL ,`| ||`DOORDARSHAN , PRASAR BHARATHI ( BROADCASTING`| ||`CORPORATION OF INDIA) MANDI HOUSE NEW DELHI, PIN –`| ||`110001`| ``` OP (CAT) No.49 of 2024 ``` ``` 2 ``` - `4 THE DIRECTOR GENERAL , ALL INDIA RADIO PRASAR BHARATHI ( BOARD CASTING CORPORATION OF INDIA) ALASHVANI BHAVAN PARLIAMENT STREET NEW DELHI, PIN - 110001` - `5 THE PAY AND ACCOUNTS OFFICER, CENTRAL PENSION ACCOUNTING OFFICER TRIKOOT- 2, BHIKAJI KAMA PLACE NEW DELHI, PIN - 110006` ## **`OTHER PRESENT:`** ## **`SRI K S PRENJITH KUMAR CGC`** ``` THIS OP (CAT) HAVING COME UP FOR HEARING ON 03.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP (CAT) No.49 of 2024 ``` ``` 3 ``` ## **J U D G M E N T** (Dated this the 3[rd] day of July, 2024) ## **Easwaran S.(J)** Applicants before the Central Administrative Tribunal are the petitioners. The grievance raised by the petitioner was regarding the revision of Family Pension with effect from 01.01.2006 and for a consequential direction for payment of arrears. The facts stated as in the Original Application is as follows:- 2. The applicants are pre- 2006 pensioners who are in receipt of pro-rata pension. Husband of the first applicant retried from service on 30.09.1996 as an Assistant Engineer in Dooradarshan, after rendering 32 years and 3 months as service. At the time of retirement, husband of the first applicant was drawing a pay scale of Rs.2000-3500. The initial pension of her husband was fixed at Rs.1731/- which stood revised to Rs.11507/with affluence of time. 3. The second applicant is a retired Assistant Engineer at All India Radio. He retired from service on 31.10.2000 and he was drawing a pay scale of Rs.7500-12000/- with last pay of Rs.11250/-. He rendered 31 years 6 months service and initial pension was fixed as Rs.5274/- and later revised to Rs.6,390/-. ``` OP (CAT) No.49 of 2024 ``` ``` 4 ``` Once the 6[th] Pay Commission’s recommendation were issued, the Government of India issued separate orders for fixation of pension especially in respect of 2006 pensioners as per Office Memorandum dated 01.09.2008. However, the Department of Personal issued an office memorandum 28.01.2013 which stipulated that pension would be reduced pro-rata where the pensioners had less than the maximum service of full pension. The Government accepted the above recommendations. Thus post 2006 retirees/pensioners had the benefit of the 6[th] CPC recommendations and not pre-2006 retirees/pensioners. The pre2006 pensioners were given the benefit of the 6[th] Pay Commission only from 24.09.2012 without any further legal or factual justification. The applicants relied on the judgment rendered by the Central Administrative Tribunal Principal Bench Delhi in OA NO. 1165/2011 and OA NO. 2165/2011. Reliance was also placed on the Division Bench judgment of the High Court of Delhi dated 29.04.2013 in WPC NO. 1535/2012 and connected cases. The Central Administrative Tribunal Ernakulam in OA No.7115/2012 had also directed by order dated 16.08.2013 that the revised pension be effected from 01.01.2006. The petitioners have also elaborated what is the actual benefit that they are entitled in paragraph 16 of their original application. Basing on these factual ``` OP (CAT) No.49 of 2024 ``` ``` 5 ``` ## and legal points, following reliefs were sought for by the petitioners. i) Issue of direction to 5th respondent to revise family pension of first applicant taking into account revised pension of Rs.12091/- payable to her husband and further revise pension of 2nd applicant to 12865/- with effect from 01.01.2006 with arrears thereto; ii) Direct the respondents to revise the pension and family pensions taking into account notional last pay in the corresponding revised pay band without effecting any pro rata reduction; iii) Declare that the first applicant is entitled to get revised family pension taking into account revised pension of Rs.12091/- payable to her husband and 2nd applicants is entitled to get revised pension of 12865/- with effect from 01.01.2006 with arrears thereto; iv) Such other reliefs that the Hon'ble Tribunal deem fit in the facts and circumstances of the case(SIC). 4. The respondents resisted their claim stating that there is no legal basis for the claim of the petitioners. In terms of the 6[th] Central Pay Commission recommendation, the Government has issued separate orders for fixation of pension in respect of pre2006 retirees and in the light of those Office Memorandum, the claim of the petitioners cannot be sustained. 5. It is submitted that as the applicants were not on the payroll of the Government of India as on 01.01.2006, the pay of ``` OP (CAT) No.49 of 2024 ``` ``` 6 ``` the both applicants were not refixed as in the case of a regular service employee, but their pension/family pension were revised as per the prevailing orders of the 6[th] Pay Commission. 6. The Central Administrative Tribunal Ernakulam, based on the statement of the respondents in the reply, found that the mode of fixation as followed by respondents seems to be the correct method of calculation, therefore dismissed their original application. 7. Aggrieved by the order of Central Administrative Tribunal, the petitioners approached this Court by preferring this petition under Art.227 of the Constitution of India. 8. We have heard Smt. G. Ranjita Jaison, the learned counsel appearing for the petitioners and Sri. S. Prajith Kumar, the Central Government Counsel appearing on behalf of the Union of India. 9. The learned counsel appearing for the petitioner, Smt. G. Ranjita Jaison contended there is no justification on the part of the respondents in limiting the claim of the petitioners. She relied on the judgment of the Hon’ble Apex Court in _**Union Of India And Anr vs Sps Vains (Retd.) And Ors**_ 2008 KHC 4940 to contend that the criteria for pay fixation in respect of the Special Army Instructions 2 1998 which enabled post 01.01.1996 retirees ``` OP (CAT) No.49 of 2024 ``` ``` 7 ``` to claim revised pension, has been dealt with, and ultimately found by the Supreme Court that creation of different class within the same cadre on the basis of doctrine of intelligible differentia cannot be accepted. She would further contend that, as per the decision of the Hon’ble Supreme Court, the benefit of revision of pay scales were also directed to be given to pre-01.01.1996 retirees. Following the principles laid down in **Sps Vains (Supra** ), there has been several orders passed by the Central Administrative Tribunal throughout the country. In one of the cases, the Union of India challenged the order passed by the Central Administrative Tribunal Delhi in WP(C)No.1535 of 2012 dated 29.04.2013 which considered the Office Memorandum dated 28.01.2013. Therefore, according to the learned counsel for the petitioner, the order of the Central Administrative Tribunal relying on the averments contained in the reply statement of the respondents was not proper and legally sustainable. 10. On the other hand, the learned counsel for the respondents would contend that the petitioners had been granted the benefit of pay fixation with effect from 01.01.2006 and their pension has accordingly been revised. He would further urge before this Court that there is no legal or factual basis for sustaining the claim of the petitioners. ``` OP (CAT) No.49 of 2024 ``` ``` 8 ``` 11. We have considered the rival submission raised across the bar and perused the original petition as well as the exhibits annexed to it. 12. The pointed question before us is as to whether the petitioners are entitled to have their pay refixed in terms of the 6[th] Pay Commission report with effect from 01.01.2006. The relevant extract of the 6[th] Pay Commission report which calls for consideration is extracted below. _**“ All past pensioners should be allowed fitment benefit equal to 40% of the pension excluding the effect of merger of 50% dearness allowance/dearness relief as pension (in respect of pensioners retiring on or after 01/04/2004) and dearness pension (for other pensioners) respectively. The increase will be allowed by subsuming the effect of conversion of 50% of dearness relief/dearness allowance as dearness pension/dearness pay. Consequently, dearness relief at the rate of 74% on pension (excluding the effect of merger) has been taken for the purposes of computing revised pension as on 01/01/2006. This is consistent with fitment benefit being allowed in case of the existing employees. 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 sum of the minimum of the pay in the pay band and the grade pay thereon corresponding to the pre-revised pay scale**_ ``` OP (CAT) No.49 of 2024 ``` ``` 9 ``` ## _**from which the pensioner had retired.”**_ 13. As per the office Memorandum 24.09.2012, the arrears are not to be paid to the retirees with effect from 01.01.2006. As per the directions of the Central Administrative Tribunal, the respondents submitted a comparative chart for a better understanding of the position of the applicants regarding the applicability of the benefits under the 6[th] Pay Commission. The same was produced on 21.03.2022. In the aforesaid statement, it has been specifically admitted by the respondents that consequent to the 6[th] Pay Commission report, the corresponding Basic Pay was Rs.10500/- and it is not notional but it is actual. For a better appreciation of the claim of the petitioners, the tabular column given in paragraph 16 of the original application is extracted for reference. |Applicant|D.O.R.|Revised<br>Pension<br>drawn w.e.f.<br>2006|Entitled due<br>pension w.e.f.<br>01.01.2006| |---|---|---|---| |1stapplicant<br>(Family<br>Pensioner)|30.09.1996|11507|12091(pension)| |2ndapplicant|31.10.2000|11920|12865 or 12714| ``` OP (CAT) No.49 of 2024 ``` ``` 10 ``` 14. A reading of the aforesaid tabular column given by the petitioners specifically shows that the benefit of the revised pension drawn with effect from 01.01.2006 had not been properly calculated by the respondents truly in terms of the recommendations of the 6[th] Pay Commission. Had the recommendations been implemented in letter and spirit, there would have been a definite increase in the pension due to the petitioners with effect from 01.01.2006. However the problem was compounded by issuance of the office memorandum which directed payment of pension on a pro rata basis. In this context, it is pertinent to note that a Division Bench of Punjab and Haryana High Court in WPC No. 19641/2009 in _**R.K. Aggarwal And Others vs State Of Haryana And Others**_ has categorically said that the revised pension after enforcement of the 6[th] Pay Commission shall not be less than 50% of the minimum of pay band plus Grade Pay corresponding to the pre-revised pay scale from which the petitioners had retired. Following the directions of Division Bench of the Punjab and Haryana High Court, the Division Bench of the Delhi High Court in _**Union of India & anr Vs. Central Government SAG & Ors**_ in WP(Civil) NO. 1535/2012 dismissed the writ petition filed by the Union of India on 29.04.2013. ``` OP (CAT) No.49 of 2024 ``` ``` 11 ``` 15. In our considered view, the Tribunal had not given any cogent reasons as to why the claim of the petitioners had to be disallowed. As per the fitment table appended to Central Civil Service (Revised Pay) Tools 2008, the notional basic pay with effect from 01.01.2006 in the corresponding pay band 2 is Rs.9300-34800 + Grade Pay of 4200/-. The petitioners would be thus entitled to Rs.23,730/- being (pay of 19530+ Grade Pay of 4200). Therefore he was eligible for a pension at the rate of 50% of the notional pay of Rs.23,730/- which comes to Rs.11,865/- with effect from 01.01.2006 without a commensurate reduction in the qualifying service. However, his pension was fixed at Rs.11,507/as per the revised payment order dated 23.05.2014 issued by the 6[th] respondent. This, in our considered view, was not taken into consideration by the Central Administrative Tribunal in its proper perspective. It is to be noted that the respondent had challenged the Judgment of the Delhi High Court before the Supreme Court in SLP 23055 of 2013 and the same was dismissed and thereafter the pre 2006 retirees were granted similar benefits. 16. In the light of the overwhelming facts, supported by the judicial pronouncement of the Division Bench of Punjab and Haryana High Court and Delhi High Court, in our considered view, ``` OP (CAT) No.49 of 2024 ``` ``` 12 ``` the Tribunal certainly erred in dismissing the original application by merely relying on the assertion of the respondents in the counter statement filed before the Tribunal and instead of assessing the claim of the applicant independently in the light of the judicial pronouncements of the various High Courts. According to our considered view, the petitioners are entitled to succeed and therefore the original petition is allowed. Ext.P6 order dated 19.05.2023 in OA NO. 821/2019 is set aside. The Original Application is allowed as prayed for. The respondents are directed to revise the family pension payable to the 1[st] petitioner and the pension applicable to the 2[nd] petitioner and take further steps to release the arrears within 2 months from the date of receipt of a copy of the judgment from the date on which they are entitled. No order as to cost. Sd/- **AMIT RAWAL JUDGE** Sd/- **EASWARAN S. JUDGE** SM ``` OP (CAT) No.49 of 2024 ``` ``` 13 ``` ## **APPENDIX OF OP (CAT) 49/2024** |**PETITIONER ANNEXURES**|**PETITIONER ANNEXURES**| |---|---| |**Annexure A1**|**A TRUE COPY OF OM NO.38/37/08-P PW (A)**| ||**DATED 01.09.2008 OF DEPT. OF PENSION AND**| ||**PENSIONERS WELFARE**| |**Annexure A2**|**A TRUE COPY OF THE OM NO.38/37/08-P &**| ||**PW(A) DATED 28.01.2013 OF DEPT. OF PENSION**| ||**AND PENSIONERS WELFARE**| |**Annexure A3**|**A TRUE COPY OF THE OM 38/37/-P & PW(A)**| ||**DATED 30.07.2015 OF DEPT. OF PENSION AND**| ||**PENSIONERS WELFARE**| |**Annexure A4**|**A TRUE COPY OF THE OM NO.38/37/08- P &**| ||**PW(A) DATED 06.04.2016 OF DEPT. OF PENSION**| ||**AND PENSIONERS WELT-ARE**| |**Annexure A4(a)**|**A TRUE COPY OF THE RELEVANT PAGE OF**| ||**STANDARD PAY SCALE APPENDED TO 5TH PAY**| ||**COMMISSION**| |**Annexure A4(b)**|**A TRUE COPY OF RELEVANT PAGE OF FITMENT**| ||**TABLE AP PENDED TO CCS(REVISED PAY) RULES**| ||**2008**| |**Annexure A5**|**A TRUE COPY THE PENSION PAYMENT ORDER**| ||**280629601288 DATED 23.05.2014 ISSUED TO**| ||**THE HUSBAND OF THE FIRST APPLICANT**| |**Annexure A6**|**A TRUE COPY OF THE LETTER HUSBAND OF**| ||**FIRST APPLICANT TO 6TH RESPONDENT DATED**| ||**06.01.2016**| |**Annexure A6(a)**|**A TRUE COPY OF RELEVANT PAGE OF FITMENT**| ||**TABLE APPEND TO CCS(REVISED PAY) RULES**| ||**2008.**| |**Annexure A7**|**A TRUE COPY OF THE PENSION PAYMENT ORDER**| ||**NO. 280620001302 DATED 23.03.2013 OF THE**| ||**SECOND APPLICANT.**| |**Annexure A8**|**A TRUE COPY OF THE ORDER OF THE TRIBUNAL**| ||**IN OA 260/2018 OF THIS TRIBUNAL DATED**| ||**20.6.2019**| |**Annexure R1**|**TRUE**<br>**COPY**<br>**OF**<br>**LETTER**<br>**NO.**| ||**PAO/IRLA/I&B/PEN./2017-19/255**<br>**DATED**| ||**05.09.2017, NO. PAO/IRLA/I & B/PEN./2016-**| ||**17/629 DATED 08.03.2017,LETTER EVEN NO. 33**| ||**DATED 21.04.2017, LETTER NO. 275 DATED**| ||**26.10.2017 AND LETTER NO. 242 DATED**| ||**13.07.2018**| ``` OP (CAT) No.49 of 2024 ``` ``` 14 ``` **Annexure R2 TRUE COPY OF DOP&T OM NO. 38/37/08-&PW (A) DATED 01.09.2018, OM DATED 28.01.2013, 30.07.2015 AND 06.04.2016 Exhibit P1 A TRUE COPY OF THE ORIGINAL APPLICATION IS O.A. 821/ 2019 Exhibit P2 A TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS DATED 01/05/2021 Exhibit P3 A TRUE COPY OF THE STATEMENT PASSED ACROSS THE BENCH BY THE PETITIONERS AS DIRECTED BY THE LEARNED TRIBUNAL Exhibit P4 A TRUE COPY OF THE MEMO PRODUCED BY THE RESPONDENT DATED 16TH OCTOBER 2021 Exhibit P5 A TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENTS DATED 21/3/2022 Exhibit P6 A TRUE COPY OF THE ORDER DATED 19/5/2023 OF IEARNED CENTRAL ADMINISTRATE TRIBUNAL ERNAKULAM BENCH OF O.A NO.821/2019 Exhibit P7 A TRUE COPY OF THE COMMON ORDER OF THE CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OF O.A.1165/2011, O.A2165/2011 AND O.A.246/2012 DATED 21/4/2015** ## **RESPONDENTS' EXHIBITS:NIL** ## **P.A.TO JUDGE** **TRUE COPY**