R Gopalakrishnan Nair vs Union Of India
2024 Latest Caselaw 10286 Ker

Kerala High Court

R Gopalakrishnan Nair vs Union Of India on 11 April, 2024

Author: A.Muhamed Mustaque

Bench: A.Muhamed Mustaque

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
         THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                               &
        THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
THURSDAY, THE 11TH DAY OF APRIL 2024 / 22ND CHAITHRA, 1946
                    OP (CAT) NO. 66 OF 2023
 ORDER DATED 02.02.2023 IN OA 180/00516/2019 OF CENTRAL
                    ADMINISTRATIVE TRIBUNAL


PETITIONER/APPLICANT:

           R GOPALAKRISHNAN NAIR, AGED 90 YEARS
           S/O LATE K. R. RAMAKRISHNA PILLAI,
           KAARADAKKETHIL, KUTTAMPEROOR P.O., ALAPPUZHA
           DISTRICT, PIN - 689623

           BY ADV K.G.PRAMOD KUMAR




RESPONDENTS/RESPONDENTS:

    1      UNION OF INDIA,
           REPRESENTED BY SECRETARY TO GOVERNMENT OF
           INDIA ,MINISTRY OF RAILWAYS, RAIL BHAWAN, NEW
           DELHI, PIN - 110001

    2      GENERAL MANAGER,
           SOUTHERN RAILWAY, PARK TOWN, CHENNAI., PIN -
           600003

    3      SENIOR DIVISIONAL FINANCE MANAGER,
           OFFICE OF THE SENIOR DIVISIONAL FINANCE MANAGER,
           SOUTHERN RAILWAY,THYCAUD P.O.,
           THIRUVANANTHAPURAM., PIN - 695014

    4      SECRETARY,
           DEPARTMENT OF PENSION AND PENSIONERS' WELFARE,
 OP(CAT) No.66 of 2023
                                 ..2..

             3RD FLOOR,LOK NAYAK BHAWAN, NEW DELHI., PIN -
             110003

          BY ADVS.
          SRI.T.V.VINU, CENTRAL GOVERNMENT COUNSEL (B/O)


      THIS    OP     (CAT)   HAVING   COME   UP    FOR   HEARING   ON
19.01.2024,        THE   COURT   ON   11.04.2024    DELIVERED      THE
FOLLOWING:
 OP(CAT) No.66 of 2023
                                 ..3..




                             JUDGMENT

SHOBA ANNAMMA EAPEN, J.

This original petition has been filed by the applicant

before the Central Administrative Tribunal, Ernakulam Bench,

challenging Ext.P7 order of the tribunal dated 02.02.2023 in

OA No.180/00516/2019.

2. The petitioner/applicant retired from the services of

the Southern Railway as "Chief Clerk" in the scale of pay of

Rs.1600-50-60-2660 on superannuation on 31.01.1991. The

post of "Chief Clerk" was a specified category post, to which

he was promoted through a selection process. The petitioner

is aggrieved by the reckoning of a lower scale for his revision

of pension with effect from 01.01.2006 and 01.01.2016. The

post of "Chief Clerk" was redesignated as "Office

Superintendent Grade II" with effect from 05.08.1994 as

recommended by the IVth Central Pay Commission. However,

there was no change in the duties and responsibilities; and the

pay scale continued as Rs.1600-2660 even after the

redesignation. Thereafter, pursuant to the Vth Central Pay

..4..

Commission recommendations, the scale of pay for the post

was revised to Rs.5500-9000; and the pension of the

petitioner was revised proportionate to the pay revision

brought into force and he continued to receive it at that rate

till 30.09.2008, the date on which, pension was revised

proportionate to the next revision of pension as per VIth

Central Pay Commission recommendation. As per Annex.A6

communication dated 28.07.2000, the third respondent

revised the pension of the petitioner as Rs.2,750/-, i.e., 50% of

Rs.5,500/-. According to the petitioner, the revised pension on

implementation of the VIth Central Pay Commission

recommendations is to be calculated as 50% of the sum of

minimum pay of the pre-revised pay scale multiplied by the

multiplicand of 1.86 added to the grade pay of Rs.4,200/-.

Thus, the petitioner ought to have received more than what

was paid to him. Though the petitioner filed several

representations, the same were not considered by the

respondents. Aggrieved by the same, the original application

was filed before the tribunal; and the tribunal, after elaborate

consideration of the issue, dismissed the original application,

holding that the petitioner is not entitled to get any further

amount than what was paid to him since the revision of

..5..

pension is on the basis of the last pay scale. Aggrieved by this,

the petitioner/applicant is before this Court with the original

petition.

3. Learned counsel for the petitioner submitted that

the post of "Chief Clerk" was redesignated as "Office

Superintendent Grade II" with effect from 05.08.1994 and the

Vth Central Pay Commission enhanced the scale of pay of

"Chief Clerk" and "Office Superintendent Grade II" to 1640-

2900, which was revised to 5500-9000 with effect from

01.01.1996. The scale of pay was common to "Chief Clerk"

and "Office Superintendent Grade II". It is further submitted

that the pensionary benefits of the petitioner ought to have

been revised on the basis of the revised pay scale granted to

the "Office Superintendent Grade II".

4. Learned Central Government Counsel appearing

for the respondents submitted that the revised pension is

calculated on the basis of the corresponding scale of pay, from

which the pensioner had retired. It is further submitted that

the petitioner, who retired on 30.01.1991 from the post of

"Chief Clerk" in the pay scale of Rs.1600-2660 corresponding

to Rs.5000-8000 in the Vth pay Commission, is not entitled to

get further revision of pension and cannot claim revision of

..6..

pension based on subsequent redesignation of the post of

Chief Clerk as Officer Superintendent Grade II.

5. We have heard learned counsel for the petitioner

and learned Central Government Counsel.

6. Admittedly, the petitioner retired as "Chief Clerk"

on 30.01.1991 in the pay scale of Rs.1600-2660 and the said

post of "Chief Clerk" was redesignated as "Office

Superintendent Grade II" with effect from 05.08.1994.

According to the learned counsel for the petitioner, when the

Vth Central Pay Commission recommendations were

implemented, the scale of pay of "Chief Clerk" and "Office

Superintendent Grade II" was enhanced to 1640-2900 and

hence, the basic pension of the petitioner was also enhanced

to Rs.2,750/- with effect from 01.01.1996.

7. Learned Central Government Counsel, on this

point, submitted that the basic pension of Rs.2,750/-, which

was paid to the petitioner up to 30.09.2008 as per the Vth

Central Pay Revision recommendations, was the amount

rounded off from Rs.2,743/- and not the 50% of pay scale of

Rs.5500-9000. It was further submitted that the petitioner is

not entitled for the benefit of the revised pay granted in

respect of the post of "Office Superintendent Grade II" since

..7..

the petitioner retired from service from the post of "Chief

Clerk" on 30.01.1991 and the redesignation occurred only in

the year 1994. It is pointed out that in the VIth Central Pay

Revision, the petitioner was granted a basic pension of

Rs.6,750/- in the pay scale of Rs.5000-8000. According to the

learned Central Government Counsel, the petitioner cannot be

granted a revision of pension corresponding to the pay scale

of "Office Superintendent Grade II" after each pay revision on

redesignation of the post of "Chief Clerk".

8. Admittedly, the last drawn salary of the petitioner

was in pay scale of Rs.1660-2660. It is after three years of his

retirement that the post of "Chief Clerk" was redesignated as

"Office Superintendent Grade II". It is a settled position that

pension has to be refixed corresponding to the scale of pay

and not corresponding to the post. The tribunal relied on the

decision of the apex court in K.S.Krishnaswamy & others v.

Union of India & another [(2006) 13 SCC 215] while deciding

the issue, wherein it has been held that for calculating the

minimum revised pension, it is the pre-revised scale of pay, in

which the pensioner concerned was drawing pay at the time

of retirement, that is relevant and not the post from which the

pensioner concerned retired so as to identify the minimum

..8..

pay in the corresponding pay band and Grade Pay attached to

the post from which he retired.

9. According to the learned counsel for the petitioner,

the facts of the case in K.S.Krishnaswamy (supra) are not

applicable in this case since in the case in hand, the post of

"Superintendent Grade II" was not an upgraded post, but only

a redesignated post, whereas in K.S.Krishnaswamy (supra),

the pensioners claimed revision based on the scale of the

posts upgraded after their retirement.

10. The question as to whether a pensioner can claim

revision of pension based on the subsequent re-designation

and upgradation of the scale of pay of the post that he/she

held at the time of retirement has been considered by this

Court in OP(CAT) No.198 of 2017 and connected cases; and

this Court, relying on K.S.Krishnaswamy (supra), held as

follows;

22. ......... what is relevant is whether an increase in pay scale is recommended by the pay commission as regards the corresponding pre-revised scale of pay in which the retiree concerned was drawing pay at the time of his retirement to decide the entitlement of revision of pension pursuant to the Government decision on the implementation of the recommendations of any Pay Commission Report. In the light of the exposition of law by the Apex Court in Krishnaswamy's case, an increase in the pay scale in any recommendation of pay commission can cause increase in the scale of pay and in that matter it is not the post that is to be looked into, we have no hesitation to hold that the Tribunal had gone wrong in holding otherwise. The fact that the Apex Court held while

..9..

dealing with Government's decision on the recommendations of the Vth CPC will not make the same inapplicable in regard to government decision on the recommendations of the VIth CPC......

xxxxxxxx

26. ............... The words 'corresponding to the pre-revised pay scale from which the pensioner had retired' invite no further interpretation especially in the light of the decision in Krishnaswamy's case 2019:KER:55156 O.P.(CAT) 198/2017 & conn. 60 (supra). As already noticed, the Apex Court in Krishnaswamy's case held that an increase in the pay scale in any recommendation of a Pay Commission is a corresponding increase in the pay scale and not of the post.

11. Therefore, it can be held that the petitioner, who

retired from service on 30.01.1991, cannot claim revision of

pension based on subsequent re-designation and upgradation

of the scale of pay of the post that he held at the time of

retirement. We do not find any reason to interfere with the

impugned order passed by the tribunal.

Accordingly, the original petition is dismissed.

SD/-

A. MUHAMED MUSTAQUE

JUDGE

SD/-

SHOBA ANNAMMA EAPEN

JUDGE bka/-

..10..

APPENDIX OF OP (CAT) 66/2023

PETITIONER ANNEXURES

Annexure - A8 TRUE PHOTOCOPY OF THE REVISED PENSION PAYMENT ADVICE ISSUED TO THE APPLICANT ON 18.9.2012.

Annexure - A18 TRUE PHOTOCOPY OF ORDER DATED 08.03.2019 ISSUED BY THE THIRD RESPONDENT.

Annexure - A1 TRUE PHOTOCOPY OF PENSION PAYMENT ORDER DATED 1.2.1991.

Annexure - A2 TRUE PHOTOCOPY OF THE APPLICATION DATED 12.2.2013. MADE BY PRAMOD KUMAR K.G. UNDER RIGHT TO INFORMATION ACT

Annexure - A3 TRUE PHOTOCOPY OF REPLY DATED 2.3.2013 TO ANNEXURE-A2 UNDER RIGHT TO INFORMATION ACT.

Annexure - A4 TRUE PHOTOCOPY OF PB CIRCULAR NO.65/94 ISSUED ALONG WITH ANNEXURE-A3 REPLY.

Annexure - A5 TRUE PHOTOCOPY OF RESOLUTION NO.

                        50(1)/IC/97 DATED 30-09-1997

Annexure - A6           TRUE    PHOTOCOPY   OF     COMMUNICATION
                        NO.P500/TVC/P/0604202278           DATED
                        28.07.2000.

Annexure - A7           TRUE PHOTOCOPY OF STATEMENT OF ACCOUNT

ISSUED FROM ERSTWHILE STATE BANK OF TRAVANCORE, THE PENSION DISBURSING BANK, FOR THE PERIOD TILL FEBRUARY 2016.

Annexure - A9 TRUE PHOTOCOPY OF REPRESENTATION DATED 06.02.2013 SUBMITTED BEFORE THIRD RESPONDENT.

Annexure - A10 TRUE PHOTOCOPY OF REJECTION ORDER

..11..

DATED 06.02.2013 BY THIRD RESPONDENT.

Annexure - A11 TRUE PHOTOCOPY OF THE NOTIFICATION RBE NO.138/1997 DATED 16.10.1997 ISSUED BY GOVERNMENT OF INDIA, MINISTRY OF RAILWAYS.

Annexure - A12 TRUE PHOTOCOPY OF REPRESENTATION DATED 11.03.2013 SUBMITTED BEFORE THIRD RESPONDENT.

Annexure - A13 TRUE PHOTOCOPY OF REPRESENTATION DATED 15.11.2017 SUBMITTED BEFORE THE SECOND RESPONDENT.

Annexure - A14 TRUE PHOTOCOPY OF ORDER DATED 09.01.2019 OF THIS HONOURABLE TRIBUNAL IN OA 947/2017.

Annexure - A15 TRUE PHOTOCOPY OF ORDER DATED 04.02.2019 REGARDING REVISION OF PENSION OF PRE-2006 PENSIONERS.

Annexure - A16 TRUE PHOTOCOPY OF REPRESENTATION DATED 24.01.2019 SUBMITTED BEFORE THE SECOND RESPONDENT.

Annexure - A17 TRUE PHOTOCOPY OF REPRESENTATION DATED 24.01.2019 SUBMITTED BEFORE THE THIRD RESPONDENT.

Annexure - A19 TRUE PHOTOCOPY OF REVISED PENSION PAYMENT ADVICE DATED 26.02.2019.

Annexure - A20 TRUE PHOTOCOPY OF JUDGMENT DATED 18.01.2016 OF THE HONOURABLE HIGHCOURT OF KERALA IN PAY AND ACCOUNTS OFFICER (REVENUE) RFA BARRACKS V. N.R. PURUSHOTHAMAN PILLAI IN O.P.(CAT) NO. 169/2015.

Annexure - A21 TRUE PHOTOCOPY OF R.T.I. APPLICATION DATED 10.02.2018 MADE BY PRAMOD KUMAR K.G. BEFORE THE CENTRAL PUBLIC INFORMATION OFFICER - RTI ACT,

..12..

SOUTHERN RAILWAY, CHENNAI.

Annexure - A22 TRUE PHOTOCOPY OF REPLY TO ANNEXURE-

A21.

Annexure - R1 TRUE COPY OF RBE CIRCULAR NO. 160/2001 DATED 20-08-2001

Annexure - R2 TRUE COPY OF RAILWAY BOARD CIRCULAR NO.RBE 138/1997 DATED 16-10-1997

Annexure - R3 TRUE COPY OF OFFICE MEMORANDUM NO.RBE 38/37/08 P&PW (A) DATED 14-10-2008

Annexure - A23 TRUE PHOTOCOPY OF OFFICE MEMORANDUM NO.38/37/08-P&PW(A) DATED 30.7.2015.

Annexure - A24 TRUE COPY OF THE RELEVANT PAGES OF THE RECOMMENDATIONS REGARDING MINISTERIAL STAFF IN RAILWAYS IN THE FIFTH CENTRAL PAY COMMISSION REPORT.

Annexure - A25 TRUE PHOTOCOPY OF THE RELEVANT PAGE OF THE LNDIAN RAILWAY ESTABLISHMENT MANUAL.

Annexure - A26 TRUE PHOTOCOPY OF THE RELEVANT PAGES OF THE FIFTH CENTRAL PAY COMMISSION REPORT INCORPORATING 'CONCEPT OF PARITY IN PENSION'.

Annexure - A27 TRUE COPY OF THE RELEVANT PAGE OF THE SIXTH CENTRAL PAY COMMISSION REPORT INCORPORATING THE REVISED PAY SCALE AS ON 01-01-2006.

Annexure - I TRUE COPY OF THE OM NO F.NO.45/86/97- P&PW(A)- PART LL DT.27-10-1997

Annexure - II JUDGEMENT IN K S KRISHNASWAMY & OTHERS VS UNION OF LNDIA AND ANOTHER, 2006 KHC 1772

Exhibit - P1 TRUE PHOTOCOPY OF THE ORIGINAL

..13..

APPLICATION DATED 01-07-2019 IN O.A. NO. 180/00516/2019.

Exhibit - P2            TRUE PHOTOCOPY OF THE REPLY STATEMENT
                        DATED    20-01-2021  IN    O.A.   NO.
                        180/00516/2019.

Exhibit - P3            TRUE PHOTOCOPY OF THE REJOINDER DATED

23-07-2021 IN O.A. NO. 180/00516/2019

Exhibit - P4 TRUE PHOTOCOPY OF THE 'ARGUMENT NOTES' DATED 07-04-2022 SUBMITTED BY THE COUNSEL FOR THE APPLICANT IN O.A. NO. 180/00516/2019.

Exhibit - P5 TRUE PHOTOCOPY OF THE 'DETAILED ARGUMENTS' DATED 07-04-2022 SUBMITTED BY THE COUNSEL FOR THE APPLICANT IN O.A. NO. 180/ 00516/2019.

Exhibit - P6 TRUE PHOTOCOPY OF THE 'ARGUMENT NOTES' DATED 22-06-2022 SUBMITTED BY THE COUNSEL FOR THE RESPONDENTS IN O.A. NO. 180/00516/2019

Exhibit - P7 CERTIFIED COPY OF THE ORDERS DATED 02- 02-2023 OF THE HONOURABLE CENTRAL ADMINISTRATIVE TRIBUNAL IN O.A. NO. 180/00516/2019.

Exhibit - P8 TRUE PHOTOCOPY OF THE EXTRACT OF SERVICE REGISTER OF THE PETITIONER.

Exhibit - P9 TRUE PHOTOCOPY OF THE EXTRACT OF INDIAN RAILWAY ESTABLISHMENT CODE (VOL-I).

Exhibit - P10 TRUE PHOTOCOPY OF THE APPLICATION DATED 09-07-2022 SUBMITTED BY THE PETITIONER UNDER RIGHT TO INFORMATION ACT AND THE REPLY DATED 08-08-2022 PROVIDED BY THE DEPARTMENT OF PENSION AND PENSIONERS' WELFARE.

Exhibit - P11 TRUE PHOTOCOPY OF THE EXTRACT OF FIFTH

..14..

CENTRAL PAY COMMISSION REPORT.

Exhibit - P12 TRUE PHOTOCOPY OF THE RAILWAY BOARD ORDER NO. 98E(GC)12-14(85) DATED 30- 06-1999.

Exhibit - P13 TRUE PHOTOCOPY THE JUDGMENT OF THE HONOURABLE SUPREME COURT DATED 27-08- 2007 IN CIVIL APPEAL NO. 2468, 2469 OF 2005.

Exhibit - P14 TRUE PHOTOCOPY OF THE EXTRACT OF SIXTH CENTRAL PAY COMMISSION REPORT.

Exhibit - P15 TRUE PHOTOCOPY OF THE EXTRACT OF SEVENTH CENTRAL PAY COMMISSION REPORT.

Exhibit - P16 TRUE PHOTOCOPY OF THE JUDGMENT OF THE HONOURABLE SUPREME COURT DATED 09-09- 2008 IN CIVIL APPEAL NO. 5566 OF 2008.

Exhibit - P17 TRUE PHOTOCOPY OF THE JUDGMENT OF THE HONOURABLE SUPREME COURT DATED 11-07- 2019 IN CIVIL APPEAL NO. 10857 OF 2016.

Exhibit - P18 TRUE PHOTOCOPY OF THE JUDGMENT OF THE HONOURABLE KARNATAKA HIGH COURT DATED 13-09-2019 IN WRIT PETITION NO. 13442 OF 2018 (S-CAT) AND THE ORDERS DATED 28-04-2017 OF THE HONOURABLE CENTRAL ADMINISTRATIVE TRIBUNAL, BANGALORE BENCH IN O.A. NO. 170/00634/2016.

Exhibit - P19 EXT. P19 - TRUE PHOTOCOPY OF THE ORDER OF THE HONOURABLE SUPREME COURT DATED 26-03-2012 IN SLP (C ) NO. 11262 OF 2012 AND THE JUDGMENT OF THE HONOURABLE PUNJAB AND HARYANA HIGH COURT DATED 24-08-2011 IN CWP NO.

9581-CAT OF 2011.