Delhi High Court
Virendra Kumar vs Union Of India And Ors. on 27 February, 2017
$~34.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 1701/2017
Date of decision: 27th February, 2017
VIRENDRA KUMAR ..... Petitioner
Through Mr. Ranvir Singh, Advocate.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through Nemo.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE CHANDER SHEKHAR
SANJIV KHANNA, J. (ORAL)
The petitioners herein are pensioners, who had retired on or before
30th June, 2005.
2. At the time of retirement, the petitioners were officers in the
Department of Telecommunication, Government of India. However,
pursuant to option exercised by them, they were treated as deemed
absorbees in the Bhart Sanchar Nigam Ltd. (BSNL). There being difference
between Central Dearness Allowance (CDA) pay scales and Industrial
Dearness Allowance (IDA) pay scales applicable to the BSNL employees,
on the basis of the recommendation of the Inter Ministerial Group approved
by the Cabinet, the petitioners, who were in the pay-scale of Rs.22400-525-
24500, were given the IDA pay-scale of Rs.25000-650-30200 (E9A).
3. A Pay Revision Committee (2nd PRC) was constituted by the
Government of India. Pursuant to the recommendations of this Committee,
the Office Memorandum No.2(7)/08-DEP(WC) dated 26th November, 2008
was issued by the Department of Public Enterprises for revision of pay of
board level and below board level executives and Non Unionised
Supervisors in Central Public Sector Enterprises with effect from 1 st July,
2007. 10 replacement pay-scales were prescribed from E0 to E9. The
highest level of pay-scale was Rs.62000-80000. There was no replacement
pay-scale for E9A i.e. Rs.25000-650-30200 (E9A).
4. The petitioners, who had retired prior to 1st January, 2007, were
granted enhanced pension in terms of the Office Memorandum dated 15th
March, 2011, issued by the Department of Telecommunication. The formula
prescribed in the said OM as set out in paragraph 4.1 to 4.4 is as under:-
"4.1 The pension/family pension of pre-2007 BSNL
pensioners/family pensioners will be consolidated with
effect from 1.1.2007 by addition together.
i. The existing pension/family pension, including
commuted portion of pension, if any.
ii. Dearness Relief upto AICPI (IW) average index 126.33
(Base year 2001=100) i.e. @ 68.8% of Basic
Pension/Basic family pension.
iii. Fitment weightage @ 30% of the sum of existing
pension/family pension and Dearness Relief thereon.
The amount so arrived at will be regarded as
consolidated pension/family pension with effect from
1.1.2007.
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 scale corresponding to the pre-revised pay
scale from which the BSNL pensioner had retired.
4.3 Since the consolidated pension will be inclusive
of commuted portion of pension, if any, the commuted
portion will be deducted from the said amount while
making monthly disbursements.
4.4 The lower and upper ceiling on pension/family
pension shall be Rs.3500/- and Rs.45000/-
respectively. "
The petitioners accept that they have been paid upgraded pension in terms of
the aforesaid formula.
5. The grievance of the petitioner is that that the Office Memorandum
dated 26th November, 2008, issued by the Department of Public Enterprises
did not have a replacement pay-scale for E9A Grade in the scale of
Rs.25000-650-30200. The petitioners submit that the BSNL had sent their
recommendation to the Government of India stating that these employees
should be given the pay scale of Rs.74000-2200-91600. The prayer in the
Original Application made by the petitioners was that they should be given
pension on the basis of their equivalent or fitment pay-scale of Rs.75000-
100000.
6. In our opinion, the Tribunal was justified and correct in dismissing the
said Original Application. It is an accepted and admitted position that none
of the serving employees have been given revised pay scale of Rs.75000-
100000 or even Rs.74000-2200-91600. The existing employees were
given replacement pay-scales between E0 to E9. The E9 scale of Rs.62000-
80000 is the highest.
7. If we accept the case of the petitioners, they would be entitled to
enhanced pension based on the scale higher than the scale being paid to the
existing officers holding the same post. There is no justification and ground
to accept the said prayer.
8. Learned counsel for the petitioner submits that the Tribunal has not
examined and considered the alternate prayer. The petitioner in the said
Original Application had not prayed for the alternative relief. The said
prayer was made in MA No. 2557/2016, without challenging the vires of the
Office Memorandum dated 2nd April, 2009 and Office Memorandum dated
15th March, 2011. In paragraph 8B of the said application, certain
calculations were made.
9. This appears to be the reason and cause why the impugned order
passed by the Tribunal does not deal with the said contention.
10. In these circumstances, we would dismiss the present writ petition
with liberty to the petitioner to challenge vires of the relevant circulars if so
advised and in accordance with law. There would be no order as to costs.
SANJIV KHANNA, J.
CHANDER SHEKHAR, J.
FEBRUARY 27, 2017
NA/VKR
