Delhi High Court
Amarendra Nath Misra & Ors vs Union Of India & Ors. on 1 November, 2018
$~38
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision : November 01, 2018
+ WP(C) 6098/2018 with CM APPL. 23614-23615/2018 &
37057/2018
AMARENDRA NATH MISRA & ORS ..... Appellants
Through Mr. Arunav Pathak and
Mr. Shikhar Saha, Advs.
versus
UNION OF INDIA & ORS. ..... Respondents
Through Mr. Arun Bhardwaj, CGSC with
Mr. Nikhil Bhardwaj,
Ms.Gauraan and
Mr. Shaswat Sharma, Advs.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE A. K. CHAWLA
JUDGMENT
A.K. CHAWLA, J.
1. Petitioners, who have been the Members of either Central
Board of Direct Taxes (CBDT) or Central Board of Excise and
Customs (CBEC), are aggrieved of the order dated 06.11.2017
passed by Central Administrative Tribunal (CAT), Principal
Bench, New Delhi, whereby, the OA no.1586/2010 made by
them seeking quashing of the memorandums dated 11.02.2009,
13/16.03.2009 and 18.11.2009 with directions for re-fixation of
their pension with consequential benefits w.e.f. 01.01.2006, was
dismissed.
2. Petitioners belong to Indian Revenue Service (Income Tax
and Customs & Central Excise), in short, 'IRS(IT) & (C&CE)'.
They retired prior to the implementation of the recommendations
of 6th Central Pay Commission (CPC) w.e.f. 01.01.2006. Having
exhausted the remedies by way of representations to the
respondents, petitioners approached CAT for re-fixation of their
pension on the premise that prior to the implementation of the
recommendations of the 6th CPC they were working as Members
of CBDT and CBEC in the pay scale of `24050-650-26000 (5th
CPC). It is their case that 6th CPC in its report had recommended
`80,000/- (fixed pay) for the Members of CBDT and CBEC.
Relevant to the subject, petitioners also state that as per the 6th
CPC recommendations, in no case, the pension of pre-2006
retirees was to be lower than 50% of the minimum pay + Grade
Pay. On the acceptance of the 6th CPC recommendations and the
issuance of the notifications dated 24.12.2008 by the Ministry of
Personnel, the amended recruitment rules of Chairman and
Members of CBDT and CBEC provided for the pay scale of
`80,000 (fixed). On this, the petitioners made their respective
representations for seeking commensurate pensionary benefits
considering the pay scale of `80,000/-(fixed). For the said
purpose, few others also made similar representations. It is
thereafter that an OM dated 11.02.2009 was issued by the
Ministry of Personnel stating that the benefit of upgradation of
posts subsequent to the retirement was not admissible to the pre-
2006 pensioners and thereby, all the references/representations
made in that regard stood disposed of. The petitioner no.1
however made another representation which came to be declined
vide letter dated 13.03.2009 observing that the benefit of
upgradation of post subsequent to the retirement was not
admissible to pre-2006 pensioners and that the department had
adopted a similar approach for the other pre-2006 pensioners and
that action has been upheld by the Supreme Court in its judgment
dated 23.11.2006 in C.A. No. 3173-3174/2006 (K.S.
Krishnaswamy etc. vs. Union of India & Anr.). On the receipt of
more representations from the pensioners/pensioners' associations
and with regard to the applicability of judgment of Supreme
Court in C.A. No. 5566 of 2006 [SLP (Civil) no. 12357 of 2006]
Union of India vs. S.P.S. Vains, the respondents issued another
O.M. dated 18.11.2009 stating that Vains judgment (supra) was
not applicable to the pensioners who retired from the civil
departments and, who, before their retirement, were governed by
CCS (Pensions) Rules, 1972, thereby, all references/
representations on the subject stood equally disposed of.
Petitioners thus approached CAT for the relief by way of OA
no.1586/2010. This came to be dismissed vide the impugned
order. Aggrieved thereof, the petitioners have preferred the
instant writ petition.
3. Moot question agitated by the petitioners all along has
been for their entitlement to pension equivalent to 50% of the
minimum of the revised pay scale of the post they occupied at the
time of retirement.
4. Undisputedly, the pay scale of the Members of
CBDT/CBEC came to be fixed at `80,000/- (fixed) vide
notification dated 24.12.2008 and accordingly, they asserted for
fixation of their pension at 50% of such pay in consonance with
the 6th CPC recommendations w.e.f. 24.12.2008. CAT did not
accept their such plea with the observations made in para 13 of
the impugned order, as follows :
"Since the applicants had retired in the pay scale of `24,050-
650-26000(5th CPC), whose replacement scale in the 6th CPC is
`75.500-80,000 (without Grade Pay), they are entitled for
fixation of their pension in terms of DoPT O.M. dated
28.01.2013 read with O.M. dated 30.07.2015. Since the
upgraded pay scale of `80,000/- (fixed) is applicable to those
officers, who came to occupy the posts of Members of the
CBDT & CBEC on selection, these applications cannot be
given the benefits of this pay scale for fixation of their pension.
Pertinent to mention that the applicants are basically seeking
benefits on the lines of 'one rank one pension'. A decision in this
regard lies exclusively within the domain of the Executive. The
financial implications of such decision would be huge
considering its applicability across all the Departments of the
Government and their entities."
The afore-going conclusions proceed on the premise of the
upgradation of the pay scale and that, only those officers are
entitled to it, who come to occupy it on selection. Do the
recruitment rules even indicate so, the impugned order is
however silent. On the perusal of the notification dated
24.12.2008 we observe that the posts of Chairman and Members
of CBDT/CBEC are to be filled either by Deputation or
Absorption. Said rules, which were notified on 24.12.2008 and
were issued in exercise of the power conferred upon the President
by way of proviso to Article 309 of the Constitution read, as
under :
"1. These rules may be called the Central Board of Direct
Taxes (Chairman and Members) Recruitment (Amendment)
Rules, 2008.
2. In the Schedule to the Central Board of Direct Taxes
(Chairman and Members) Recruitment Rules, 2006,
(i) against serial no.(1) relating to the post of Chairman, for
the existing entries in columns (4) and (12) the following entries
shall be substituted, namely :-
(4) (12)
Rs.80,000/- Deputation/absorption:
(fixed)
Members of Central Board of Direct Taxes
who have a residual service of one year or
more on the date of occurrence of the vacancy
of Chairperson:
Provided that, in the eventuality of no Member
having a residual service of one year or more
on the date of occurrence of the vacancy in the
post of Chairperson, Government may relax
the condition of residual service.
AND possessing the following essential
qualification:-
(i) Having at least twenty years of experience
in administering and running the direct tax
administration in the Central Government with
at least ten years of experience in the field
formations of Central Board of Direct Taxes.
(ii) Having high professional merit and
excellence; and
(iii) Having impeccable reputation of integrity.
Note : The normal eligibility conditions of
maximum age of 56 years on the date of
closing of applications shall not be applicable
in cases of absorption.
(ii) against serial number (2) relating to the post of Member,
for the existing entries in columns (4) and (12) the following
entries shall be substituted, namely :-
(4) (12)
Rs.80,000/- Deputation/Absorption
(fixed)
(i) Officers of the Central Government
appointed on a regular basis in the grade of
Pay Band-4 Rs.37,400-67,000 with Grade
Pay of Rs.12,000/-.
AND possessing the following
qualification:-
(i) Having at least fifteen years of
experience in administering and running the
direct tax administration in the Central
Government with at least ten years of
experience in the field formations of Central
Board of Direct Taxes.
(ii) Having high professional merit and
excellence; and
(iii) Having impeccable reputation of
integrity.
Note :
1. The normal eligibility conditions of
maximum age of 56 years on the date of
closing of applications shall not be
applicable in cases of absorption.
2. No person with less than one year
residual service on the date of occurrence of
vacancy for which selection is being made
shall be eligible for consideration"
Sd/-"
Recruitment rules for CBEC are akin to the afore-going
rules applicable to CBDT Chairman/Members. The afore-going
rules are crystal clear to the effect that the pay scale of `80,000/-
(fixed) is applicable to both the Chairman and the Members as
well, irrespective of the process by which they join such posts.
These rules also by no means even suggest that such pay scale is
applicable to only the officers who come to join on selection. We
are therefore of the considered view that CAT fell in error in
coming to a conclusion to the contrary.
5. The next question that now falls for consideration is as to
whether the said rules provide for or even indicate that the
subject pay scale of `80,000/- (fixed) was so provided on account
of any upgradation of the rank or the post. Having given our
thoughtful consideration, we do not observe any element even to
that effect in the rules, which are notified on 24.12.2008. It
should therefore necessarily follow that when said the
recruitment rules were notified on 24.12.2008, these provided for
only the revised pay scale for the posts of Chairman/Members of
CBDT and CBEC. Respondents on their part seek much reliance
on the Ministry of Finance's communication dated 01.01.2009 to
contend that the post of Chairman/Member of CBDT and CBEC
was upgraded to apex pay of `80,000/- (fixed) equivalent to the
status of Special Secretary to the Govt. of India w.e.f.
24.12.2008. Rules notified on 24.12.2008 do not suggest so.
Communication of the Ministry of Finance dated 01.01.2009,
reads as under :
"F. No. 50/37/2008-Ad:1
Government of India
Ministry of Finance
Department of Revenue
New Delhi, the 1st Jan, 2009
SANCTION ORDER NO.01/2009
Subject : Up-gradation of the rank and pay of the post of
Members in the Central Board of Excise & Customs
(CBEC) and the Central Board of Direct Taxes
(CBDT)-Sanction regarding.
The President is pleased to sanction the up-gradation of
the pay scale of the post of Member in the Central Board of
Excise & Customs (CBEC) and the Central Board of Direct
Taxes (CBDT) from HAG+Scale of Rs.75,500-80,000/- (pre-
revised scale of Rs.24050-650-26000) to the apex scale of
Rs.80,000 (fixed) with the rank of Special-Secretary to the
Govt. of India with effect from 24/12/2008.
2. The expenditure involved shall be met out of the budget
grant of the Ministry of Finance, Department of Revenue- Grant
No.41.
3. This issues with the concurrence of the Department of
Expenditure vide their ID Note F 2623/JS(Per) dated
01/10/2008 and IFU's Diary No. 1506/2008-IFU.III dated
29.12.08.
Sd/-"
Does this sanction order no. 01/2009 have the effect of
amending the recruitment rules notified on 24.12.2008 and that
too retrospectively, one wonders. To our mind, it cannot be
construed so. Recruitment rules which are promulgated by the
Ministry of Personnel cannot be altered or amended by the
Ministry of Finance, as is sought to be contended. Plea of the
respondents to the contrary is therefore bound to fail. It appears
that CAT has overlooked such a vital aspect of the matter.
Fixation of pay scale of `80,000/- (fixed) under the rules notified
on 24.12.2008, in our considered view, cannot be said to be
premised on upgradation of either the rank or the post. The
recruitment rules notified on 24.12.2008 simply provide for
revised pay scale for the post of Chairman/Member,
CBDT/CBEC, without any reference to their posts being
upgraded to be equivalent to the rank of Special-Secretary to the
Govt. of India. Drawing any other conclusion adverting to
sanction order no.01/2009 dated 01.01.2009 would therefore be
not sustainable. In view thereof, the contention of Mr. Bhardwaj,
learned Central Govt. Standing Counsel that the posts of
Member, CBDT/CBEC were upgraded to apex pay of `80,000/-
(fixed) w.e.f. 24.12.2008 placing reliance upon the judgment of
the Supreme Court in K.S. Krishnaswamy etc. vs. Union of India
& Anr. [Appeal (Civil) 3174 of 2006] and Union of India vs. R.
Sethumadhvan & Anr. (Civil Appeal no.3173 of 2018) is wholly
misplaced and is rejected. In Krishnaswamay's case (supra), the
question(s) inter alia was only as regards the applicable
corresponding scale of pay on the implementation of the 5 th Pay
Commission and not the post, from which the incumbent retired.
Similar was Sethumadhvan's case (supra). Vains case (supra)
adverted to by the respondents is of course, of no avail to the
petitioners inasmuch as the petitioners' case is of the Civil
servants governed by CCS (CCA) Rules.
6. As regards the contention of benefit of upgradation
inuring only to the persons who were in service on the date of
upgradation of the post, it would be relevant to note that the
computation of pension has to be with respect to the scale of pay
applicable to the post on which the incumbent retired. Suffice to
say, the petitioners' case is of revision of their pension on the
basis of the revised pay scale and not on the basis of any assumed
or categorised upgraded post. O.M. dated 01.09.2008 which inter
alia relates to the implementation of Government's decision on
the recommendations of the 6th CPC-revision of pension of pre-
2006 pensioners/family pensioners etc. in para 4.2 provides as
under :
"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."
The above-said clause of the said O.M. dated 01.09.2008
squarely covers the case of the petitioners. In view thereof, the
impugned O.M.s, as far as the petitioners are concerned, have no
application to their cases. Here, it is also relevant to note that in
the instant writ petition, the petitioners have restricted the relief
only as regards the fixation of their pension w.e.f. 24.12.2008 as
it appears the pension prior thereto has already been fixed as
asserted to by them in the O.A. no. 1586/2010.
7. In view of the foregoing, the impugned order of CAT is set
aside and the respondents are directed to re-fix the pension of the
petitioners @ `40,000/- per month w.e.f. 24.12.2008 and the
arrears be paid within eight weeks from today. Petition stands
disposed of accordingly. No order as to costs.
A. K. CHAWLA, J
VIPIN SANGHI, J
NOVEMBER 01, 2018
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