Union of India represented by Secretary to Government of India, Department of Pensions and Pensioners Welfare, Ministry of Personnel, PG and Pensions, Loknayak Bhavan, Khan Market, New Delhi-110003 vs K.G. Manoharan (Retd. Deputy Post Master, HSG-I), Alappuzha HPO, and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 26TH DAY OF NOVEMBER 2019 / 5TH AGRAHAYANA, 1941** **OP (CAT).No.60 OF 2019** ## **AGAINST THE ORDER/JUDGMENT IN OA 52/2017 DATED 12-09-2018 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONER/S:** - **1 UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA, DEPARTMENT OF PENSION AND PENSIONERS WELFARE, MINISTRY OF PERSONNEL,. PG AND PENSIONS, LOKNAYAKBHAVAN, KHAN MARKET, NEW DELHI-110 003** - **2 SECRETARY TO GOVERNMENT OF INDIA MINISTRY OF COMMUNICATIONS (DEPARTMENT OF POSTS), NEW DELHI-110 001** - **3 THE CHIEF POSTMASTER GENERAL KERALA CIRCLE, THIRUVANANTHAPURAM-695 033** - **4 DIRECTOR OF POSTAL ACCOUNTS KERALA CIRCLE, THIRUVANANTHAPURAM-695 001** - **5 DIRECTOR OF P AND T OFFICE THIRUVANANTHAPURAM-695 033** - **6 SUPERINTENDENT OF POST OFFICES ALAPPUZHA DIVISION, ALAPPUZHA-688 012 BY ADV. SRI.T.V.VINU, CGC** ## **RESPONDENT/S:** - **1 K.G.MANOHARAN RETD. DEPUTY POST MASTER (HSG-I), ALAPPUZHA HPO, RESIDING AT G.P. BHAVAN, KOMALAPURAM, AVALUKUNNU-688 006** - **2 R. MONIAN RETD. DEPUTY POSTMASTER (HSG-I), ALAPPUZHA HPO, RESIDING AT MITHILA VADAKKAL, SANATHANAPURAM,** _**OP(CAT).60/19**_ 2 ## **ALAPPUZHA-688 003** - **3 N. BHASKARAN PILLAI** **RETD. DEPUTY POST MASTER (HSG-I), CHERTHALA HPO, RESIDING AT BHASKARAM, PAZHAVEEDU, ALAPPUZHA-688 009** - **4 P. LEELAVATHY AMMAL, RETD. POST MASTER (HSG-I), PONNANI HPO,RESIDING AT ANANTHARAMAPURAM, SANATHANAM WARD, ALAPPUZHA-688 001** - **5 K. BALAKRISHNAN, RETD. POST MASTER (HSG-I), ADUR HPO, RESIDING AT ANOOP NIVAS, PANNIVIZHA, ADUR-691 523** - **6 N. SAROJINI AMMA RETD. SUB POSTMASTER, (HSG-I), MAYITHARA MARKET, RESIDING AT CMC 14, MARUTHURVATTOM, CHERTHALA-688 524** - **7 A.S. RAMACHANDRAN,** **RETD. DEPUTY POSTMASTER (HSG-I), ALAPPUZHA HPO, RESIDING AT SANKARAMANIKYAM, CMC 10, CHERTHALA-688 524** - **8 R. SANKARA WARRIER RETD. POST MASTER (HSG-I) ALUVA HPO, RESIDING AT THEKKEWARRIAM, THAKAZHY-688 562** - **9 T.K. RAGHAVAN NAIR** - **RETD. POSTMASTER (HSG-I), ALAPPUZHA HPO, RESIDING AT PUTHENPURACKAL HOUSE, KAROOR, AMBALAPUZHA-688 561** - **10 CJ. RAJA RETD. POST MASTER (HSG-I), ALAPPUZHA HPO, RESIDING AT NAZIM MANZIL, LAJANATH WARD, ALAPPUZHA-688 001** - **11 R. RAMASWAMY** **RETD. POSTMASTER (HSG-I), NEYYATTINKARA HPO, RESIDING AT T.C. 23/64, RAGOM, NANDAVANAM STREET, VALIYASALAI, THIRUVANANTHAPURAM-695 036** - **12 K. AHALIA BAI (W/O. MOHANLAL PAI, RETD. POST MASTER (HSG-I), ALAPPUZHA), RESIDING AT REVATHI, ANPURAM, ALAPPUZHA-688 011** _**OP(CAT).60/19**_ 3 |**13**|**GEETHA NARAYANAN,**| |---|---| ||**(W/O. V. NARAYANAN, RETD. ASST. ACCOUNTS OFFICER, P**| ||**AND T AUDIT, THIRUVANANTHAPURAM),RESIDING AT**| ||**SREEKRIPA, TIRUMALABHAGOM-688 540**| |**14**|**B. CHANDRIKA DEVI AMMA**| ||**(W/O. P. CHANDRASEKHARAN PILLAI, RETD.**| ||**SUPERINTENDENT OF POST OFFICES, IRINJALAKKUDA**| ||**DIVISION), RESIDING AT SAI JYOTHI, KOONAYIL,**| ||**PARAVUR-691 301**| ||**R1-3, R5, R8-10, R12-13 BY ADV. SRI.V.MADHUSUDHANAN**| ||**R1-3, R5, R8-10, R12-13 BY ADV. SRI.B.UNNIKRISHNA**| ||**KAIMAL**| **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 26.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _**OP(CAT).60/19**_ 4 ## **K.VINOD CHANDRAN & V.G.ARUN, JJ.** ----------------------------------------------- OP(CAT).No.60 of 2019 ----------------------------------------------Dated this the 26[th] day of November, 2019 ## **JUDGMENT** ## _**Arun, J.**_ The Union of India and its officials are aggrieved by Exhibit P5 order of the Central Administrative Tribunal, Ernakulam Bench in O.A.No.52 of 2017. 2. The issue projected in the original application pertained to the entitlement for revision of pension and other terminal benefits of the retired Central Government employees pursuant to the recommendations of the VI[th] Central Pay Commission. As per Annexure A2(as marked in the original application), revision of pension in accordance with the VI[th] CPC recommendation was approved and implemented with effect from 1.6.2006. 3. Applicants 1 to 11 are persons who had retired prior to 1.1.2006, while working as Postmasters/Deputy Postmasters in the Higher Selection Grade-1(HSG-1). _**OP(CAT).60/19**_ 5 Applicants 12 to 14 are widows of pre-2006 pensioners. The husbands of applicant Nos.12,13 and 14 had retired as Postmaster (Higher Selection Grade-I), Assistant Accounts Officer (P&T Audit) and Superintendent respectively. The pension/family pension of pre-2006 retirees was revised as per Annexure A3 O.M dated 1.9.2008. Clause 4.2 of Annexure A3 reads as follows; _“4.2 The fixation of pension will be subject to the provision that the revised pension, in no case, shall be lower than fifty percent of the minimum of the pay in the pay band plus the grade pay corresponding to the 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.”_ After implementation of the 6[th] CPC recommendations, the pre-revised pay scale from which the applicants had retired was upgraded and the pay structure revised, in terms of the CCS (Revised Pay) Rules, 2008. Majority of the pensioners, including the applicants, sought re-fixation of pension with reference to the upgraded scale of pay, on the premise that the revised consolidated pension of pre-2006 pensioners _**OP(CAT).60/19**_ 6 should not be lower than 50% of the minimum upgraded pay in the pay band and the grade pay of the post from which the pensioner had retired. The demand was turned down as per Annexure A4 dated 11.2.2009, the relevant portion of which reads as follows; _“4. The Table in Annexure-1 of this Department's OM dated 14.10.2008 is based on the CCS (Revised Rules), 2008 which are applicable to the employees in the service as on 1.1.2006 and no dispensation in this regard can be made in respect of pre-2008 pensioners for the purpose of application of the provision of Para 4.2 of this Department's OM dated 1.9.2008._ _5. In accordance with the instructions contained in para 4.2 of this Department's OM of even number dated 1.9.2008, the fixation of pension will be subject to the provision that the revised pension, in no case, shall be lower than fifty percent of the minimum of the pay in the pay band plus the grade pay corresponding to the pre-revised pay scale from which the pensioner had retired. Therefore, the benefit of upgradation of posts subsequent to their retirement would not be admissible to the pre-2006 pensioners in this regard.”_ 4. Annexure A4 was successfully challenged before the Principal Bench of the Central Administrative Tribunal by _**OP(CAT).60/19**_ 7 some of the pre-2006 pensioners, resulting in Annexure A5 order. The Tribunal quashed Annexure A4 and directed to refix the pension of all pre-2006 retirees with effect from 1.6.2006 based on Annexure A2 resolution and in the light of the observations in the Tribunal's order. The order of the Tribunal was challenged unsuccessfully by the Government before the High Court of Delhi and an SLP filed against that judgment was dismissed by the Honourable Supreme Court. The applicants claimed the benefit of Annexure A5 order of the Principal Bench. In support of their claim, the applicants relied on the decisions of the CAT, Principal Bench in O.A.No.655 of 2010 and that of the Ernakulam Bench in O.A.No.526 of 2016, wherein the Tribunal held the applicants therein to be entitled for revised pension in terms of paragraph 4.2 of O.M dated 1.9.2008 or 50% of the minimum pay in the upgraded pay scale and corresponding revised pay band, whichever is beneficial. The claim of the applicants was turned down by the Government, whereupon the original application was filed. 5. The order impugned in this original petition was _**OP(CAT).60/19**_ 8 rendered by the Tribunal relying on its order in O.A.No.526 of 2016. The operative part of the impugned order reads as follows: _“12. Accordingly, the Original Application is disposed of holding that the applicants are entitled to a revised pension in terms of paragraph 4.2 of OM dated 1.9.2008 or 50% of the minimum pay in the pay band of Rs.9.300-34,800/- with Grade Pay of Rs.4,600/- (in case of applicants 1 to 12) & Rs.4,800/- (in the case of applicants 13 & 14) or as per Annexure A4 fitment table, whichever is beneficial to the applicants. Accordingly, the respondents are directed to issue revised Pension Payment Order in terms of what is stated above within a period of two months from the date of receipt of a copy of this order. No costs.”_ 6. When the matter was taken up for consideration today, the learned Central Government Counsel submitted that the challenge raised in the original petition cannot survive in view of the judgment of this Court in O.P(CAT).No.277 of 2017 and connected cases. O.P(CAT).No.277 of 2017 was filed against the order of the Tribunal in O. A. No.526 of 2016 and connected cases. In _**OP(CAT).60/19**_ 9 OP(CAT).No.277 of 2017 and connected cases, a Division Bench of this court dealt with the same question, as to whether the pension of pre-2006 retirees is to be revised, based on the up-gradation and re-fixation of pay scale of the post from which he/she had retired. The question was considered in the light of the decision of the Honourable Supreme Court in _**Krishnaswamy and Others v. Union of India and Another**_ [(2007) 2 SCC (L&s) 491]. The Division Bench observed that the Principal Bench of the Tribunal, while setting aside Annexure A4 had failed to take note of the dictum in _**Krishnaswamy's case (supra)**_ and hence the order was rendered _per incurium_ . After elaborate consideration, the Division Bench answered the question in the following manner: “ _37. Therefore, the question is what was the legally sustainable contention and supporting material available to uphold the claim of the respondent for the grade pay of Rs.4600/- ? Evidently, the Tribunal accepted the contention of the respondent herein/the applicant that in view of the decision of this Court in O.P. (CAT)No.169/2015, the computation of pension based on the decision of implementation on the_ _**OP(CAT).60/19**_ 10 _recommendations of the VIth CPC has to be 50% of the pay scale with respect to the scale of pay applicable to the post in question and not the corresponding pre-revised scale of pay from which the pensioner had retired. This is evident from the recital in paragraph 8 of the impugned order which would reveal that the contention of the respondent herein that as per the VIth CPC the revised pay scale of Postmaster HSG-I is Rs.9300-34,800 with Grade Pay of Rs.4,600/- with effect from 1.1.2006 was taken into account by the Tribunal for holding that though the respondent herein had retired from service in the pay scale of Rs.6,500-10,500/-, on account of his promotion as HSG-I after his retirement the pay scale applicable to HSG-I at the time of his retirement should be his pre-revised pay in terms of paragraph 4.2 of O.M. dated 1.9.2008. Since the corresponding revised pay of Deputy Postmaster HSG-I after the VIth CPC was Rs.9,30034,800/- 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.9,30034,800/- plus Grade Pay of Rs.4,600/- or as per the minimum pay in the pay band of Rs.9,300-34,800/plus grade pay of Rs.4,600/- as per the fitment table, whichever is more beneficial to the petitioner. Thus, it is obvious that virtually, the reason for holding that the respondent herein is entitled to a revised pension_ _**OP(CAT).60/19**_ 11 _of 50% of the minimum pay in the pay band of Rs.9300- 34,800/- with Grade Pay of Rs.4,600/- is that it is the scale of pay, in fact, pay band applicable to the post of Deputy Postmaster. This finding is, no doubt, in conflict with the binding decision in_ _**Krishnaswamy's case (Supra)** . We have already found that the decision in O.P.(CAT)No.169/2015 was rendered without referring to the decision of the Apex Court in_ _**Krishnaswamy's case (supra)** . In such circumstances, in the light of the decision in_ _**Krishnaswamy's case (supra)** and_ _**Sethumadhavan's case (supra)** , the said direction cannot be sustained. In short, in view of the factual matrix obtained in this case, the respondent is entitled only to the grade pay of Rs.4,200/- which is the normal replacement pay structure Grade Pay and he cannot, as a matter of right, claim Rs.4,600/- as Grade Pay for the purpose of calculating his revised pension based on the decision in implementing the recommendations of the VIth CPC. Hence, the calculation of revised pension as per VIth CPC corresponding to the pre-revised pay scale from which he retired can be taken only as Rs.930034,800 + 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_ _**OP(CAT).60/19**_ 12 _Rs.9,230/- w.e.f. 1.1.2006. As regards the first prayer of the respondent in O.A.No.526/2016 for a declaration that he is entitled to revised pension based on the pay band plus grade applicable to HSG-I w.e.f. 1.1.2006, we have already found the prayer is impermissible to be granted in view of the decision in_ _**Krishnaswamy's case (supra)** . In short, the respondent herein/the applicant is entitled to get Rs.8842/- only as his revised pension. The respondent did not have a case that the calculation of his revised pension, as mentioned in the O.P., in terms of para 4.1 of O.M. dated 1.9.2008 or that it is below the amount of revised pension grantable in terms of para 4.2 of O.M. dated 1.9.2008. The upshot of the discussion is that the respondent herein/the applicant is entitled to the reliefs sought for in the Original Application and therefore, the impugned order calls for interference. In the result, this O.P. is allowed and the impugned order in O.A.No.526/2016 is set aside. As a necessary sequel, the said O.A. will stand dismissed.”_ Based on its findings, the Division Bench allowed the original petitions upholding the challenge against the order in O.A.No.526 of 2016. The impugned order of the Tribunal in the instant case is based entirely on the order in O.A.No.526 of 2016. _**OP(CAT).60/19**_ 13 7. We are in respectful agreement with the findings in O.P(CAT).No.198 of 2017 and connected cases. An upgradation and revision, in the pay scale of the post from which the pensioners had retired, will not entail in revision of their pension, the revision of pension being dependent on revision of the pay scale, as it stood, at the time of their retirement. Hence, the order of the Tribunal, which holds otherwise, is liable to be interfered with. In the result, the original petition is allowed, the impugned order is set aside and the original application is dismissed. No order as to costs. Sd/- **K.VINOD CHANDRAN JUDGE** Sd/- **V.G.ARUN JUDGE** _vgsx_ _**OP(CAT).60/19**_ 14 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORIGINAL APPLICATION IN O.A. NO. 180/00052/2017 DATED 14.01.2017 FILED BY THE RESPONDENTS.** **EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT IN O.A. NO. 180/00052/2017, DATED 06.10.2017 FILED BY THE PETITIONERS** **EXHIBIT P3 TRUE COPY OF THE REJOINDER IN O.A. O. 180/00052/2017, DATED 04.11.2017 FILED BY THE RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT IN O.A. NO. 180/00052/2017, DATED 15.05.2018 FILED BY THE PETITIONERS.**