Kerala High Court
K. Subhadra Devi vs The Director General Of Police on 28 May, 2024
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
TUESDAY, THE 28TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946
OP (CAT) NO. 180 OF 2023
AGAINST THE ORDER/JUDGMENT DATED 23.01.2013 IN OA
NO.180/00428/2019 OF CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
PETITIONER(S)/APPLICANT IN O.A:
K. SUBHADRA DEVI,
AGED 70 YEARS,
W/O K. JOSEPH,
RETIRED WOMAN HEAD CONSTABLE,
ANDAMAN AND NICOBAR POLICE,
RESIDING AT ANGADI PUTHEN VEEDU,
KAMPAMCODU, VAYAKAL P.O., VALAKAM,
KOLLAM DISTRICT, PIN - 691532
BY ADVS.
NISHA GEORGE
GEORGE POONTHOTTAM (SR.)
A.L.NAVANEETH KRISHNAN
RESPONDENT(S)/RESPONDENTS IN O.A:
1 THE DIRECTOR GENERAL OF POLICE,
ANDAMAN & NICOBAR ISLANDS, PORT BLAIR,
ANDAMAN AND NICOBAR ISLANDS, PIN - 744101
2 THE DEPUTY SUPERINTENDENT OF POLICE,
OFFICE OF THE DIRECTOR GENERAL OF POLICE,
POLICE HEADQUARTERS, PORT BLAIR,
ANDAMAN & NICOBAR ISLANDS, PIN - 744101
3 UNION OF INDIA,
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
MINISTRY OF PERSONNEL PG & PENSIONERS WELFARE,
3RD FLOOR, LOK NAYAK BHAVAN, KHAN MARKET,
NEW DELHI, PIN - 110001
OP (CAT) NO. 180 OF 2023
2
4 THE PAY AND ACCOUNTS OFFICER,
CHIEF PAY AND ACCOUNTS OFFICE,
ANDAMAN & NICOBAR ADMINISTRATION,
PORT BLAIR, PIN - 744101
SRI THOMAS MATHEW NELLIMOOTIL
THIS OP (CAT) HAVING COME UP FOR ADMISSION ON
28.05.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP (CAT) NO. 180 OF 2023
3
JUDGMENT
Amit Rawal, J.
1. The present OP(CAT) is directed against the
judgment of Central Administrative Tribunal rendered in OA
No.180/00428/2019 whereby the following claims sought by
the petitioner has been rejected:
(i) Set aside Annexure A3 order issued by the 4 th
Respondent to the extent it fixed the scale of pay of
the applicant as on 1-1-2006 at 4000- 6000 instead of
4500-7000 with grade pay of Rs. 2800/-.
(ii) Declare that in view of the specific condition in
Annexure A1 OM that while fixing pay on notional
basis, the pay fixation formulae approved by the
Government and other relevant instructions on the
subject, in force at the relevant time, shall be strictly
followed, the Applicant is entitled to the revised scale
of pay introduced as on 01-01-2006 for arriving at his
revised pension in terms with recommendations of the
7th Pay Commission.
(iii) Direct the Respondents 1 to 4 to refix the pension
payable to the Applicant as per the recommendations
of the 7th Pay Commission by revising the notional
scale of pay drawn by her as on 01-01-2006 at 4500-
7000 with grade pay of Rs. 2800/-and grant all the
consequent monetary benefits attached thereto as
OP (CAT) NO. 180 OF 2023
expeditiously as possible at any rate within a time limit
to be prescribed by this Honourable Tribunal.
(iv) Direct the 4th Respondent to consider and pass orders
on Annexure A4 representation filed by the Applicant
as expeditiously as possible at any rate within a time
limit to be prescribed by this Honourable Tribunal.
(v) Grant such other reliefs this Honourable Tribunal may
deem fit in the facts and circumstances of the case."
2. The case set up by the applicant in the
aforementioned O.A., in brief is as under;
Petitioner voluntarily retired from the service of
Andaman and Nicobar Police with effect from 01.09.2004 as
Woman Head Constable placed in the Grade of Assistant
Inspector of Police. At the time of retirement the scale of
pay drawn was 4000-100-6000 and the last drawn basic pay
was Rs.5,000/-.
3. On implementation of 6th Pay Commission, the
scale of Pay of Police personnel was upgraded with effect
from 01.01.2006 and that of the Assistant Sub Inspector
was revised from 4000-6000 to 4500-7000 with grade pay
of Rs.2800/-. But the said benefit was not given to the pre-
OP (CAT) NO. 180 OF 2023
2006 pensioners like the petitioner and revised pension was
to be calculated based upon the existing pension under a
specified formula.
4. On the recommendation of 7th Pay Commission,
Government issued Official Memorandum dated 12.05.2017
Annexure-A1/R4 whereby for pre-2016 pensioners the pay
was ordered to be notionally fixed for those who had retired/
died before 01.01.2016 by fixing their pay in the pay matrix
recommended by the 7th Pay Commission in the level
corresponding to the pay in the pay scale/pay band and
grade pay at which they retired/died. This would be done by
notional pay fixation under each intervening Pay
Commission based on the Formula or revision of pay. The
aforementioned letter was followed by another
communication Annexure-A7 dated 06.07.2017. Paragraph 4
of Annexure-A7 clearly provided that in case of
inconsistency in the concordance table vis-à-vis relevant
rules and instructions, the notional pay and pension/family
pension of pre-2016 pensioners/Family pensioners be fixed
OP (CAT) NO. 180 OF 2023
in accordance with the rules/instructions applicable for
fixation of pay in the intervening Pay Commission periods.
The pension of pre-2016 pensioners/family pensioners was
directed to be revised with effect from 01.06.2016 in
accordance with the instructions contained in the letter
dated 12.05.2017 (Annexure A1/R4). Since there was an
inconsistency between the concordance table and the
directions in Annexure-A1 dated 12.05.2017, an application
was submitted under Right to Information Act to provide the
details or the reason for rejecting the fixation of pay of the
petitioner at the rate of 4500-7000 as on 01.01.2016. Reply
dated 08.01.2019 was issued wherein the reason assigned
was that the pension revision case was settled and Chief Pay
Account Officer had issued an e-revision of the pension on
02.05.2018. The said letter did not assign the reasons asked
for by the petitioner in not fixing her notional pay on
account of recommendation of 6th Pay Commission. It is in
that background, petitioner challenged the order Annexure-
A3 in fixing notional pay by taking into consideration the pay
OP (CAT) NO. 180 OF 2023
recommendation of 7th Pay Commission.
5. Contesting respondent ie., respondent No.4
objected to by filing a counter affidavit and stated that the
revision of pension of pre-2006 pensioners was as per the
Government letter dated 11.02.2009. It is clearly clarified
that the benefit of up-gradation of posts subsequent to
retirement would not be applicable to the pre-2006
pensioners. It was further stated that the Government of
India vide communication dated 12.05.2017 Annexure
A1(R4) decided that the revised pension/family pension with
effect from 01.01.2016 in respect all Central Civil
Pensioners/family pensioners including CAPFs, who retired
or died before 01.01.2016 be revised by notionally fixing
their pay in the pay matrix recommended by 7 th Central Pay
Commission in the level corresponding to the pay in the pay
scale/pay band and grade pay at which they retired/died. On
the basis of the aforementioned pleadings and Annexures,
learned Tribunal rejected the claim of the petitioner.
6. Learned counsel appearing on behalf of the
OP (CAT) NO. 180 OF 2023
petitioner submitted that learned Central Administrative
Tribunal while rejecting the case of the petitioner has not
taken into consideration the specific prayers as extracted
above and also Annexure-A7 dated 06.07.2017 which was
issued in pursuance of the recommendation of the
Government dated 12.05.2017 Annexure-A1/R4 and drew
the attention of this Court to paragraphs 4 and 5 thereof.
Thus there is an abdication. In the absence of any
information given to the petitioner as sought under Right to
Information Act for non-grant of up-gradation of pay in view
of the recommendation of 6th Pay Commission applicable to
the Assistant Sub Inspector, by granting Rs.4500 and
Rs.7000 with special grade of Rs.2800/-, though prayer was
also sought, but there has not been any adjudication.
7. On the contrary, learned counsel emphatically
relied upon Clause 7 of letter dated 12.05.2017 and
paragraph/Clause 5 of the letter dated 06.07.2017 to
contend that the pension of pre-2016 pensioners/Family
pensioners can be only revised with effect from 01.01.2016
OP (CAT) NO. 180 OF 2023
in accordance with the instructions contained in the
departments O.M of even number dated 12.05.2017 using
concordance table enclosed therein. The said table did not
include the pay scale of 4000-6000. The petitioner rightly so
have not been granted the benefit of up-gradation on
recommendation of 6th Pay Commission and urged this Court
for dismissal of this petition by upholding the findings
rendered by the learned Central Administrative Tribunal.
8. We have heard the learned counsel for the parties
and appraised the paper book.
9. In order to address the controversy raised before
us, it would be expedient to extract paragraph 4 and 7 of
the letter dated 12.05.2017 Ext.A1/R4. The same reads as
under:
"4. The aforesaid Committee has submitted its Report and
the recommendations made by the Committee have been
considered by the Government. Accordingly, it has been
decided that the revised pension/family pension w.e.f.
01.01.2016 in respect of all Central civil pensioners/family
pensioners, including CAPF's, who retired/died prior to
01.01.2016, may be revised by notionally fixing their pay in
the pay matrix recommended by the ih CPC in the level
corresponding to the pay in the pay scale/pay band and
OP (CAT) NO. 180 OF 2023
grade pay at which they retired/died. This will be done by
notional pay fixation under each intervening Pay Commission
based on the Formula for revision of pay. While fixing pay on
notional basis, the pay fixation formulae approved by the
Government and other relevant instructions on the subject in
force at the relevant time shall be strictly followed. 50% of
the notional pay as on 01.01.2016 shall be the revised
pension and 30% of this notional pay shall be the revised
family pension w.e.f. 1.1.2016 as per the first Formulation.
In the case of family pensioners who were entitled to family
pension at enhanced rate, the revised family pension shall be
50% of the notional pay as on 01.01.2016 and shall be
payable till the period up to which family pension at
enhanced rate is admissible as per rules. The amount of
revised pension/family pension so arrived at shall be rounded
off to next higher rupee.
7. Accordingly, for the purpose of calculation of notional
pay w.e.f. 1.1.2016 of those Government servants who
retired or died before 01.01.1986, the pay scale and the
notional pay as on 1.1.1986, as arrived at in terms of the
instructions issued vide this Department's OM 45/86/97 -
P&PW(A) dated 10.02.1998, will be treated as the pay scale
and the pay of the concerned Government servant as on
1.1.1986. In the case of those Government servants who
retired or died on or after 01.01.1986 but before 1.1.2016,
the actual pay and the pay scale from which they retired or
died would be taken into consideration for the purpose of
calculation of the notional pay as on 1.1.2016 in accordance
with para 4 above."
10. The aforementioned letter was followed by a
communication Annexure-A7. Paragraphs 4 and 5 of the said
OP (CAT) NO. 180 OF 2023
communication is extracted hereinbelow:
4. These concordance tables have been prepared to
facilitate revision of pension of pre-2016 pensioners/family
pensioners by the concerned pension sanctioning authorities.
Due care has been taken to prepare these concordance
tables based on the fitment tables for fixation of pay from
4th to 5th, s" to 5th and 5th to ih Pay Commission. In case of
any inconsistency in the concordance tables vis-a-vis the
relevant rules/instructions, the notional pay and
pension/family pension of pre-2016 pensioners/family
pensioners may be fixed in accordance with the
rules/instructions applicable for fixation of pay in the
intervening Pay Commission periods.
5. It is requested that the pension of pre-2016
pensioners / family pensioners may be revised w.e.f.
01.01.2016 in accordance with the instructions contained in
this Department's OM of even no dated 12.05.2017 and
using the concordance tables enclosed herewith. "
11. The question which arises for adjudication is
whether the petitioner should have been granted the benefit
of fixation of notional pension on recommendation of 7 th Pay
Commission without getting the benefit of 6th Pay
Commission, the answer would be no. For the simple
reason, while looking at prayer (ii) extracted above, learned
Administrative Tribunal failed to address the issue. But the
OP (CAT) NO. 180 OF 2023
said benefit inured on promulgation of decision of the
Government dated 12.05.2017/06.07.2017. No doubt, at
the time of recommendation of 6 th Pay Commission the
benefit of notional pay was not extended to the persons who
had retired in 2004. Cumulative reading of both Clauses
extracted above leaves no manner of doubt that petitioner
once is entitled to the benefit of up-gradation of notional
pay/pension owing to the recommendation of 7 th Pay
Commission, cannot be denied the benefit of 6 th Pay
Commission as there is no such caveat in the
aforementioned Clauses denying the benefits to the persons
who had retired in 2004 or similarly situated persons. The
learned Administrative Tribunal while rendering the findings
as taken from paragraphs 6 to 9 extracted hereinbelow has
not addressed the aforementioned issue:
6. After hearing both sides, I find considerable substance
in the arguments raised by the learned Standing Counsel.
Evidently the applicant had retired from the post of grade
Assistant Sub Inspector in the scale of Rs.4000-6000. Grade
Pay of the revised pay in the 6th CPC is Rs.2400/-. Revision
of pension has been granted to the applicant accordingly. It
OP (CAT) NO. 180 OF 2023
is true that up-gradation was granted to the scale of
Assistant Sub Inspector of Police in the Union Territories and
Delhi during the 6th Central Pay Commission and serving
Assistant Sub Inspectors are entitled to get Grade Pay of
Rs.2800/-. Annexure A-1/Annexure R-4 O.M says about
revision of pension of pre-2016 pensioners. From paragraph
4 of the O.M, it is clear that notional fixation shall be done
basing on the scale at which the pensioner had retired. This
is more clear from para 7 of Annexure A-1/Annexue R-4
which says that 'In the case of those Government Servants
who retired or died on or after 01.01.1986 but before
1.1.2016, the actual pay and the pay scale from which they
retired or died would be taken in to consideration for the
purpose of calculation of the notional pay as on 1.1.2016 in
accordance with paragraph 4 above'.
7. Similarly, the learned Standing Counsel also placed before
me a copy of O.M dated 1.9.2008 which deals with revision
of pension of pre-2006 pensioners, where also it is made
clear that fixation of pension will be subject10 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 other words, what is
important is the scale from which the applicant had retired
at the time of her retirement.
8. It is evident that an up-gradation of the post was made
during the 6" Central Pay Commission but the applicant
cannot stake benefit of the upgradation. In Krishnaswamy,
quoted supra, it has been made clear that the COURT O
scale from which the person had retired is important and not
OP (CAT) NO. 180 OF 2023
the post. In other words, a subsequent up-gradation in the
post has no relevance and benefit of the same cannot be
claimed by the pensioner.
9. As rightly pointed out Annexure A-10 O.M dated 9.7.2019
produced along with rejoinder has no application to the facts
of this case as it deals with a special treatment granted to
persons who retired during the 5th CPC scale of Rs.6500-
10500 or equivalent pay scale which is not applicable to the
applicant."
12. Not only this, the letter emphatically relied upon
by the respondents in paragraph 4 is of 2009, the effect of
which was effaced by communication dated 12.05.2017.
Even reliance to the Annexure-A10 dated 09.07.2019 by the
respondent would not take away the right of the petitioner,
for, it conveys the benefit to the person who had retired or
died in the 5th Central Pay Commission's report in a scale of
6500-10500. No reasoning has been assigned as to why and
under what circumstances this benefit has been confined to
the persons who had retired or died in the scale of 6500-
10500, thus emphatic reliance by the Central Administrative
Tribunal is wholly erroneous and perverse.
Accordingly, we allow the petition by setting aside the
OP (CAT) NO. 180 OF 2023
order of CAT and issue directions in terms of the prayers
extracted above. Respondents are directed to calculate and
give the benefit of notional up-gradation as expeditiously as
possible within a period of two months from the date of
receipt of copy of his judgment.
Sd/-
AMIT RAWAL
JUDGE
Sd/-
EASWARAN S.
JUDGE
nak
OP (CAT) NO. 180 OF 2023
APPENDIX OF OP (CAT) 180/2023
PETITIONER ANNEXURES
Annexure-A3 TRUE COPY OF THE ORDER DATED 26.04.2018
ISSUED BY THE 4TH RESPONDENT.
Annexure -A1 TRUE COPY OF THE OFFICIAL MEMORANDUM
NO.38/37/2016-P&PW(A) DATED 12.05.2017
Annexure -A2 THE RELEVANT PAGE OF PART C OF 6TH CPC
NOTIFICATION.
Annexure-A4 TRUE COPY OF THE REPRESENTATION DATED
09.07.2018 SUBMITTED BY THE APPLICANT
BEFORE THE 4TH RESPONDENT.
Annexure -A5 TRUE COPY OF THE REPRESENTATION DATED
09.07.2018 FILED BY THE APPLICANT
BEFORE THE 1ST RESPONDENT.
Annexure-A6 TRUE COPY OF THE LETTER DATED
16.07.2018 ISSUED BY THE OFFICE OF THE
1ST RESPONDENT TO THE 4TH RESPONDENT.
Annexure-A7 TRUE COPY OF THE OM NO.38/27/2016
P&W(A) DATED 06.07.2017 ALONG WITH THE
RELEVANT PAGES OF CONCORDANCE TABLE
APPENDED THERETO ISSUED BY THE 3RD
RESPONDENT.
Annexure -A8 TRUE COPY O THE APPLICATION DATED
09.11.2018 SUBMITTED BY THE APPLICANT
UNDER THE RIGHT TO INFORMATION ACT.
Annexure-A9 TRUE COPY OF THE REPLY DATED 08.01.2019
ISSUED BY THE 4TH RESPONDENT.
Annexure R1 A TRUE COPY OF THE EXTRACT FROM SWAMY'S
COMPILATION OF CCS
Annexure -R2 A TRUE COPY OF THE EXTRACT FROM SWAMY'S
COMPILATION OF CCS 2008
OP (CAT) NO. 180 OF 2023
Annexure -R3 A TRUE COPY OF OM NO. 38/37/08-P&PW(A)
DATED 11.02.2009
Annexure -R4 A TRUE COPY OF THE OM NO. 38/37/2016 P
& PW(A) DATED 12.05.2017
Annexure-R5 A TRUE COPY OF THE EXTRACT OF THE
CONCORDANCE TABLE APPLICABLE IN RESPECT
OF APPLICANT
Annexure -R6 A TRUE COPY OF THE LETTER DATED
04.05.2018
Annexure -A10 TRUE COPY OF THE OFFICE MEMORANDUM
DATED 09.07.2019 ISSUED BY THE MINISTRY
OF PERSONNEL PG AND PENSIONS.
Exhibit -P1 TRUE COPY OF THE ORIGINAL APPLICATION
NO. 180/00428/2019 DATED 14.6.2019
PREFERRED BY THE PETITIONER BEFORE THE
CENTRAL ADMINISTRATION TRIBUNAL
Exhibit -P2 TRUE COPY OF THE REPLY STATEMENT IN
O.A.NO. 180/00428/2019 DATED 25.11.2019
FILED ON BEHALF OF THE 4TH RESPONDENT
BEFORE THE CENTRAL ADMINISTRATION
TRIBUNAL.
Exhibit -P3 . TRUE COPY OF THE REJOINDER IN O.A.NO.
180/00428/2019 DATED 4.6.2022 ALONG
WITH ANNEXURES FILED BY THE APPLICANT
BEFORE THE CENTRAL ADMINISTRATION
TRIBUNAL
Exhibit-P4 TRUE COPY OF THE ORDER DATED 23.01.2023
IN O.A. NO. 180/00428/2019 OF THE
CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH.
