Madras High Court
The Indian Southern Region Postal vs Union Of India on 22 November, 2021
W.A.(MD)No.1026 of 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 22.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
and
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
W.A.(MD)No.1026 of 2012
&
M.P.(MD)No.2 of 2012
The Indian Southern Region Postal
Pensioners Welfare Association,
11, Mannar Thirumalai Street,
Balaji Nagar, Thirupparankundram,
Madurai – 625 005.
Rep. by its Secretary,
Mr.S.Muthusamy ... Appellant/
Petitioner
-vs-
1.Union of India,
Through the Secretary to Government of India,
Department of Pension and Pensioners Welfare,
Ministry of Personnel,
Public Grievances and Pension,
Lok Nayak Bhawan,
Khan Market,
New Delhi – 110 003.
2.Secretary to the Government of India,
Department of Expenditure,
Ministry of Finance,
North Block,
Central Secretariat, New Delhi – 110 001. ... Respondents/
Respondents
1/12
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W.A.(MD)No.1026 of 2012
[Cause title accepted vide order dated 22.11.2012, made in M.P.(MD)No.1 of
2012 in W.A.(MD)SR.No.44278 of 2012]
PRAYER: Writ Appeal filed under Clause 15 of the Letters Patent, against the
order dated 14.08.2012, passed in W.P.(MD)No.7555 of 2012.
For Appellant : Mr.R.R.Kannan
For Respondents : Mrs.L.Victoria Gowri
Assistant Solicitor General of India
JUDGMENT
S.VAIDYANATHAN, J.
and
G.JAYACHANDRAN, J.
The present writ appeal has been preferred by the Association challenging
the order dated 14.08.2012, made in W.P.(MD)No.7555 of 2012.
2.According to the appellant Association, they have locus to file the present
appeal and that by fixing the cut-off date as 01.01.2006, the respondents adopted
two different yardsticks for extension of pensionary benefits to the retired
employees concerned. The appellant relying upon the decision of the Hon'ble
Apex Court in Kallakurichi Taluk Retired Official Association, Tamil Nadu,
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W.A.(MD)No.1026 of 2012
etc., vs. State of Tamil Nadu [Civil Appeal Nos.8848-8849 of 2012, decided on
17.01.2013], submitted that the writ petition is maintainable by an Association.
He would further contend that even though subsequent Office Memorandum has
been issued to rectify the anomaly, the employees, who have retired before
01.01.2006, are not treated on par with those who retired on or after 01.01.2006,
to get pensionary benefits. Hence, the order of the learned Single Judge needs to
be interfered with.
3.The first respondent has filed counter affidavit stating that after filing of
the Writ Petition, the grievance of the appellant has been sorted out and Grade
Pay and other benefits have been extended to the employees concerned. In the
counter affidavit, it has been elaborately stated how pre-2006 and post-2006
retirees were settled with pensionary benefits under two different schemes and the
dismissal of the S.L.Ps. filed in the earlier round of litigations. The Hon’ble Apex
Court in D.S.Nakara and others Vs. Union of India [1983 (1) SCC 305], has
upheld the fixation of cut-off date and that the said judgment is a benchmark to
decide as to whether the appellant is entitled to the relief sought for or not.
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W.A.(MD)No.1026 of 2012
4.The relevant portion of the said counter affidavit reads as follows:-
''6.It is humbly submitted that subsequently vide order
dated 20.11.2014, passed by the learned Central
Administrative Tribunal in O.A.No.937 of 2010 entitled as
''All India S-30 Pensioners Association and Ors. Versus
Union of India and Ors.'' and O.A.No.2101 of 2010 entitled
as ''Central Govt. Pensioners Association and Ors. Versus
Union of India and Anr. [hereinafter referred to as ''Order
dated 20.11.2014''], the learned Central Administrative
Tribunal, Principal Bench, held that:-
'' .... We direct the respondents to consider the
revised pay of the applicants corresponding to the pay
at which, the concerned pensioner had in fact retired,
instead of considering the minimum of the said pay
scale, thereby determining pension/family pension to
pre-2006 retirees ....''
7.It is humbly submitted that Union of India has filed
W.P.(C)No.8080 / 2016 and W.P.(C) No.10655 / 2017 against
the orders of Hon'ble CAT, Principal Bench, on the following
grounds:-
Hon'ble Supreme Court in Union of India
(UOI) vs. S.R.Dhingra and others [2008 (1) SCC (LS)
926 observed that when two sets of employees of the
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W.A.(MD)No.1026 of 2012
same rank retire at different points of time, one set
cannot claim the benefit extended to the other set on
the ground that they are similarly situated as though
they retired with the same rank, they are not of the
same class or homogeneous group. Hence, Article 14
has no application. The Court noted that in
D.S.Nakara's case, the Apex Court observed that the
pensioners who retire with the same rank need not be
given identical pension, where their average
emoluments at the time of their retirement were
different in view of the difference in pay or in view of
different pay scales being in force.
Hon'ble Supreme Court in its order dated 10.10.2006
in Transfer Case (Civil) No.72 of 2004 in Col B.J. Akkara
Vs. Government of India and ors. inter alia observed as
under:-
''b) But all retirees retiring with a particular
rank do not form a single class for all purposes.
Where the reckonable emoluments as on the date of
retirement (for the purpose of computation of
pension) are different in respect of two groups of
pensioners, who retired with the same rank, the group
getting lesser pension cannot contend that their
pension should be identical with or equal to the
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W.A.(MD)No.1026 of 2012
pension received by the group whose reckonable
emolument was higher. In other words, pensioners
who retire with the same rank need not be given
identical pension, where their average reckonable
emoluments at the time of their retirement were
different, in view of the difference in pay, or in view of
different pay scales being in force.''
Fixation of a cut-off date for the purpose of extending
retiral benefits is perfectly permissible and legitimate for the
Government. Pre-2006 and post-01.01.2006 retirees cannot
be extended the same pensionary benefits as the Government
of India have on the recommendations of the 6th C.P.C.,
issued two different schemes for pre-2006 and post-2006
retirees. It is, therefore, not correct to compare a retiree in
December 2005 with a retiree in January, 2006, both of
whom are governed by a separate scheme of pensionary
benefits.
In a catena of judgments, various Courts, including
the Apex Court, have held that it is the prerogative of the
executive authorities to fix cut-off dates and to determine
issues of pay and pension fixation. The executive takes these
decisions based on a variety of considerations including
financial, administrative and other constraints. The Courts
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W.A.(MD)No.1026 of 2012
do not generally interfere in this regard unless the principles
adopted are patently arbitrary or mala fide. This is not the
case in the present instance.
The Apex Court in the case of Govt. of Andhra
Pradesh and other V.N.Subbarayudu and others, 2008 (14)
SCC 702 has held that even if no reason is forthcoming for
fixation of particular date it should not be interfered with by
the Court unless the cut-off date leads to some blatantly
capricious or outrageous result.
The Pay Commissions are expert bodies and their
recommendations from an overall package. It, therefore,
cannot be anybody's contention that recommendations which
are manifestly to the advantage of pensioners shall be
wholeheartedly accepted while those which may not yield the
same degree of relative benefits are liable to be challenged
and struck down in Court of Law.
Grant of benefit of pay and pension is a matter of
policy and the Government is entitled to take into account
various factors including financial implications and
availability of resources to decide what benefit or how much
benefit should be granted and from which particular time.
Such a policy is not open to judicial review unless the same
is arbitrary and against the public policy with the object to
be achieved.
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W.A.(MD)No.1026 of 2012
Financial constraints and implications are always
vital and important factor in interpretation of economic /
fiscal policies of Government as paying capacity of employer
cannot be ignored in granting and denying monetary benefits
to employees including ex-employees.
8.It is humbly submitted that in its order dated
16.09.2016, Hon'ble High Court of Delhi stayed the
operation of the orders of Hon'ble CAT in OA.No.937/2010
and 2101/2010. Thus, insofar as the pensioners of Central
Government is concerned, the matter regarding parity in
pension between the past and new pensioners is sub-judice
in the High Court of Delhi. The next date of hearing in the
case is 12.04.2021.
9.It is humbly submitted that in implementation of the
decision taken by the Government on the recommendations
of the 7th Central Pay Commission, orders have been issued
vide Department of Pension & Pensioners' Welfare OM.No.
38/37/2016 – P & PW(A), dated 12.05.2017 for revision of
pension of pre-2016 pensioners/family pensioners. It has
been provided in this OM that the pension/revised pension
w.e.f. 01.01.2016 in respect of all Central Civil
Pensioners/family pensioners who retired/died prior to
01.01.2016 may be revised by notionally fixing their pay in
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W.A.(MD)No.1026 of 2012
the pay matrix recommended by the 7th C.P.C. in the level
corresponding to the pay in the pay-scale / pay band and
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. Thus
the relief sought by the petitioners for revision of pension of
pre-2006 pensioners at par with those who retired after
01.01.2006 has already become available w.e.f. 01.01.2016.
10. It is humbly submitted that,
(i) the relief sought by the petitioner for
increase in the minimum pension / family pension w.e.f.
01.01.2006 from Rs.3,500/- to Rs.5,000/- may not be granted
in view of the reasons given in Para 1 -4 above.
(ii) the relief sought by the petitioners for
revision of pension of pre-2006 pensioners at par with those
who retired after 01.01.2006 has already become available
w.e.f. 01.01.2016. The matter regarding parity in pension
w.e.f. 01.01.2006 may not be granted in view of the reasons
brought out in Para 5-8 above.''
5.Now, the anomaly has been rectified to the maximum extent after the
orders of the Hon'ble Apex Court, wherein, the issue has already been settled and
attained finality. Therefore, this Court is not inclined to grant the relief as sought
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W.A.(MD)No.1026 of 2012
for by the appellant. The Hon'ble Apex Court has held that it is the prerogative of
the executive authorities to fix cut-off dates and to determine issues of pay and
pension fixation depending on variety of considerations including financial,
administrative and other constraints. The Courts do not generally interfere in this
regard unless the principle adopted are patently arbitrary or mala fide. Thus, we
do not find any error apparent in the order of the learned Single Judge, as such,
we are not inclined to interfere with the same. However, the issue regarding the
maintainability of the writ petition by an Association is left open and it can be
agitated before the appropriate forum. Hence, we find that there is no reason to
grant the relief sought for by the appellant and the Writ Appeal is dismissed. If
individual person has got any grievance, it is open to him to redress the same in
accordance with law by making representation to the authorities concerned. In
view of the subsequent Office Memorandums, which have been issued to remove
the anomalies, it is always open to the aggrieved persons to work out their remedy
before the appropriate forum. No costs. Consequently, connected M.P. is closed.
[S.V.N., J.] [G.J., J.]
Index : Yes / No 22.11.2021
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W.A.(MD)No.1026 of 2012
To
1.The Secretary to Government of India,
Union of India,
Department of Pension and Pensioners Welfare,
Ministry of Personnel,
Public Grievances and Pension,
Lok Nayak Bhawan,
Khan Market,
New Delhi – 110 003.
2.The Secretary to the Government of India,
Department of Expenditure,
Ministry of Finance,
North Block,
Central Secretariat,
New Delhi – 110 001.
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W.A.(MD)No.1026 of 2012
S.VAIDYANATHAN, J.
and
G.JAYACHANDRAN, J.
smn2
W.A.(MD)No.1026 of 2012
22.11.2021
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