Rajendra vs Union Of India & Ors.
2017 Latest Caselaw 5064 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI


                       +       W.P.(C) No.8113/2016


                                    Date of Decision: 14th September, 2017.

     RAJENDRA                                        ..... PETITIONER
                           Through        Mr.Dinesh Agnani, Sr. Adv. with
                                          Mr.Piyush Sharma, Adv.

                           versus


     UNION OF INDIA & ORS                            ..... RESPONDENTS

                   Through                Mr.Akshay Makhija, Adv. with
                                          Mr.Aditya Goyal, Adv. & Mr.Shivi
                                          Sanyam, Adv.

     CORAM:
     HON'BLE MR. JUSTICE VIPIN SANGHI
     HON'BLE MS. JUSTICE REKHA PALLI


     VIPIN SANGHI, J

1. The petitioner has preferred the present petition to assail the

order dated 15th February, 2016 passed by in O.A. 2553/2014 and the

order dated 19th April, 2016 passed in Review Application

No.82/2016 in the aforesaid application by the Central Administrative

Tribunal (hereinafter referred to as 'Tribunal'). The Tribunal has

dismissed the Petitioner's said Original Application as well as the

Review Application by impugned orders.

2. The petitioner, who retired as a Member of the Income Tax

Appellate Tribunal (ITAT) on 24th April, 1987, has been receiving

pension. As per the recommendation of the Sixth Central Pay

Commission (VIth CPC), the Government revised the pay scale of

Member, ITAT to Rs.75,500-80,000/- with effect from 01.01.2006.

Accordingly, the monthly pension of the Petitioner was fixed at

Rs.37,750/- i.e. 50% of the minimum of the pay-scale w.e.f. 1st

January, 2006. In June, 2011, he received an undated letter from the

Pay And Account Officer of Ministry of Law and Justice, Department

of Legal Affairs, addressed to Pay & Account Officer, Central

Pension Accounting Officer, New Delhi, reducing his monthly

pension from Rs.37,500/- to Rs.33,500/-. Consequently, an amount

of Rs.3,52,386/- was sought to be recovered from the petitioner as

excess pension, paid to him since 1st January, 2006. The petitioner

sought restoration of his pension, as earlier fixed, at Rs.37,750/- and

for refund of the amount recovered from him in the aforesaid O.A.,

but without success.

3. Before the Tribunal, the petitioner had placed reliance on

several earlier decisions rendered by the Tribunal in other cases,

namely, O.Anandaram Vs. Pay & Accounts Officer and others, O.A.

No.759 of 2011, decided by Madras Bench on 26.3.2012;

B.V.Venkataramaiah Vs. Pay & Accounts Officer and others,

O.A.No.517 of 2012, decided by Bangalore Bench on 14.2.2013;

Shri Prakash Narain Vs. Secretary, Department of Personnel and

others, O.A.No.1715 of 2013, decided by Principal Bench on

23.5.2013; Shri Bhaiyaji Gupta Vs. Union of India through

Secretary, Department of Personnel and others, OA No.2374 of

2014, decided by Principal Bench on 18.7.2014 & Central

Government SAG (S-29) Pensioners Association through its

Secretary Vs. Union of India and another, OA No.655 of 2010,

decided by Full Bench of the Tribunal on 1.11.2011. In all these

cases, the original applicants had been granted similar relief and the

decisions of the Tribunal had been implemented by the Department

without challenge.

4. The petitioner by placing reliance on the same Clause 4.2 of the

O.M. dated 1st September, 2008 contended that since the pay scale for

HAG had been virtually revised from Rs.75,500-80,000/- w.e.f. 1st

January, 2006, the petitioner would be entitled to pension at 50% of

Rs.75,500/-. Learned counsels have argued on the same lines before

us as well.

5. Clause 4.2 of the aforesaid Office Memorandum dated 1st

September, 2008 reads as under:-

"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." (emphasis supplied)

6. The respondents, in their reply before the Tribunal, contended

that at the time of his retirement the petitioner was in the pay scale of

Rs.7300-7600/- fixed as per the Fourth Central Pay Commission (IVth

CPC). The Fifth Central Pay Commission (Vth CPC) was

implemented from 1st January, 1996 and the corresponding pay scale

of Rs.7300-7600/- (in the IVth CPC), was revised to Rs.22,400-

24500/- (in the Vth CPC). On 6th October, 1999, the pay-scale of

Member, ITAT was upgraded from Rs.7300-7600/- to Rs.7300-8000/,

which was made effective from 1st January, 1996 by a presidential

order dated 6th October, 1999. The scale of Rs.7300-8000/- under the

IVth CPC was revised to the pay scale of Rs.22,400-26000/- w.e.f. 1st

January, 1996 in the V th CPC. Under the VIth CPC, the pay scale of

Rs.22,400-24500/- was further revised to Rs.67000-79000/- w.e.f. 1st

January, 2006. However, the pay scale of Rs.22400-26000/-

(corresponding to Vth CPC pay scale of Rs.7300-8000/-) which was

the upgraded pay of an ITAT member, was revised to the HAG pay

scale of Rs.75,500-80,000/- w.e.f. 1st January, 2006 in accordance

with VIth CPC. On 1st September, 2008 an Office Memorandum was

issued by the Ministry of Personnel, Public Grievances & Pensions,

Department of Pension and Pensioners' Welfare, for laying down the

methodology for the fixation of pension of all pre-2006

pensioners/family pensioners. Para 4.2 thereof with which we are

concerned, lays down that the fixation of pension would be subject to

the provision that revised pension in no case shall 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, and that in the case of HAG+ and above scales, would be

50% of the minimum of the revised pay scale w.e.f. 1st January, 2006.

7. The respondents claimed that the HAG pay scale of Rs.75,500-

80,000/- was the pay scale corresponding to the pre-revised upgraded

scale of Rs.7300-8000/- (revised to Rs.22400-26000), whereas the

replacement scale for the erstwhile pay scale of Rs.7300-7600/- in

which the petitioner had retired, was Rs.67,000-79,000/-. Thus,

according to the respondents, the pension admissible to the petitioner

was 50% of the minimum of the pay scale i.e. Rs.67,000/-.

8. The learned counsel for the petitioner has placed reliance on the

orders as aforesaid, passed by the different Benches of the Tribunals

granting relief to similarly placed persons, and holding that their

pension be fixed by considering the upgraded pay scale. He submits

that, admittedly, all the aforesaid orders have been duly implemented

by the respondents. The contention of the petitioner, therefore, is that

once persons belonging to the same service, including those who had

retired even prior to the petitioner, have been granted pension by

considering the upgraded pay scale, there is no justification on the

part of the respondents in denying the said benefit to the petitioner.

9. Learned counsel for the petitioner had also placed reliance on

the decision of this Court in the case of Ram Phal vs. Union of India

& Ors. W.P.(C) No.3035/2016, decided on 03.08.2016, which deals

with the issue arising in the present case. We deem it appropriate to

refer to the said decision.

10. In the case of Ram Phal (supra), he had superannuated from

ITBP on July 31, 2002. The question which arose for consideration

was as to whether he would be entitled to receive the benefits of

upgradation of his post after 1.1.2006, for determining his pensionary

dues. In the said case there was also a challenge to the office

memorandum which had declined the aforesaid benefits to employees

who had retired before 1.1.2006. This Court, relying on its judgment

in Union of India & Anr. Vs. Central Govt. SAG & Ors., held that

since the memorandum in question had been quashed vide that

judgment, the question of granting benefit of upgradation had to be

considered de hors the contents of the memorandum. In such a

situation, this Court was of the view that there was no doubt that the

petitioner would be entitled to the consequential benefit of

upgradation. The relevant paragraph of the judgment is reproduced

below:-

" We would also note that reliance placed on the Office Memorandum dated February 11, 2009 itself is misguided for the reason that Central Government SAG case was an appeal against the order of Central Administrative Tribunal dated November 01, 2011 wherein the Tribunal had set aside the Memorandum dated February 11, 2009. The decision rendered by the Division Bench of this Court was also challenged before the Supreme Court but the same attained finality and quietus when the curative petition was dismissed on April 30, 2014. Needless to state the order dated February 10, 2016 having been passed subsequently, the respondents were duty bound to consider the case of the petitioner de hors the Memorandum dated February 11, 2009 and had the same been done, undoubtedly the petitioner would stand entitled to pension in sum of Rs.9,375/- per month as has been claimed by him."

11. On the other hand, learned counsel for the respondent in

support of his plea that the pensionary benefits have to be calculated

on the basis of pay scale as was applicable, at the time when the

employee was in service, has relied on judgment of the Gujarat High

Court in Bank of India through Officer Vs. Kunjvihari

Rameschandra Dixit since deceased through Legal Heirs Special

Civil Appeal No.1746/2015 decided on 13.07.2015 and a judgment of

this Court in Union of India & Ors. Vs. Amarendra Nath Mishra &

Ors. W.P.(C) No.7821/2012 decided on 04.11.2016.

12. The only issue that arises for our consideration is whether the

upgradation of the pay scale effective from 1st January, 1996 which

resulted in the upgraded pay scale of Rs.75,500-80,000/- under the

VIth CPC for ITAT members, can be taken as the revised pay scale for

the purpose of implementation of para 4.2 of the Office Memorandum

dated 1st September, 2008.

13. In effect, the respondents are claiming that for purposes of

fixation of pension of employees who retired prior to the upgradation,

the relevant pay scale (w.e.f. 1st January, 2006) would be Rs.67,000-

79,000/- , whereas in respect of serving employees-serving at the time

of the upgradation, the same would be Rs.75,500-80,000/- from the

same date.

14. We are not dwelling on the issue whether there could be two

different pay scales fixed by the Government - one for the purpose of

fixation of pension of the retired employees, and the other for the

serving employees. The Government may well be justified if it were

to adopt such a practice, considering the fact that with the passage of

time, it may be necessary to justify grant of higher pay scales to the

serving employees considering their workloads, higher skill, and

knowledge requirements, and demand and supply in the market.

15. However, in the present case, the respondents have not taken

any such plea for adoption of different revised pay scales in respect of

the serving employees, and the pensioners. There is no conscious

decision taken by the Government in this regard.

16. We have carefully considered the aforesaid judgments and we

find that as far as the judgment of the Gujarat High Court is

concerned, the same does not specifically decide the question raised

before us. It was, indeed, a case where the Tribunal had directed that

the recoveries be made from the bank for having made over-payment

to the employee and it is in these circumstances that the High Court

had dismissed the petition filed by the bank by holding that no error

had been committed by the Tribunal in directing that the excess

payment made by the bank should be recovered from the bank.

17. So far as the judgment of this Court in case of Amarendra

Nath Mishra (supra) is concerned, we find that though the said issue

as to whether pension would be payable on the basis of pay scale

upgraded after the retirement of the employee concerned, was raised,

but the same was not decided by the Division Bench and the matter

had been remanded back to the Tribunal for considering the said issue

and therefore, we find that the reliance placed by the respondent on

the said judgment is also misplaced.

18. That being the position, considering the fact that others

similarly situated like the petitioner have also been restored the

pension initially fixed under the VIth CPC at Rs.37,750/-, and the

respondents not having even assailed the orders passed in respect of

other employees - particulars whereof have been noted hereinabove,

we see no justification for denying equal treatment to the petitioner in

the present case accordingly. The respondent cannot discriminate

against the petitioner in the matter of fixation of his pension.

19. Consequently, the writ petition is allowed. The impugned

orders are set aside. The pension of the petitioner is restored to

Rs.37,750/- per month w.e.f. 1st January, 2006. The respondents are

directed to refund the amount recovered from the petitioner along

with interest at the rate of 12% per annum. This order shall be

complied with within the next four weeks.

(VIPIN SANGHI) JUDGE

(REKHA PALLI) JUDGE

SEPTEMBER 14, 2017/aa