Sunday, 4 May 2014
Do they ever learn?
Hegel is quoted to have said, “We learn from history that we never learn from history.”
* * * * *
OROP was proclaimed by the Hon’ble Finance Minister in the august Parliament. The definition of OROP was arrived at in the office of the RM by no lesser entities than the Defence Secretary, Secretary DESW, FADS, and CGDA amongst other functionaries of other Ministries.
After reading the pieces of ‘jiggery pokery’ by yet another functionary of the MoD, it is understood that now another PCDA wishes to show his knowledge and amend the above definition arrived at by his bosses to mean that pre-2006 pensioners would get the same pension of those who retired as on 1.1.2006 and not the pension of the officers/ORs who retired on 01 Apr 14, the day from which the OROP is to be effective.
The worthy PCDA – in seeking to change/modify the definition of OROP arrived at in the office of the RM by no less an entity as the Defence Secretary, the FADS and CGDA (bosses of PCDA (P) appears to have decided, like PCDA (O) decided in the on-going Rank Pay case, to give his own interpretation.
Whether it is a Breach of Privilege of Parliament where the OROP was announced to much applause, or just rank disobedience of the RM’s meeting of Feb 14 is now open to debate.
The PCDA and his bosses may wish to read the recent decision of the Hon’ble Supreme Court of Curative Petition (Civil) No. 126 of 2014 which flows from OA No. 655 of 2010 and other OAs heard and decided in favour of the petitioners against the Respondents , UoI & Ors.
Let me remind ourselves and the bureaucracy, personified by then lower functionaries and Secretary, Expenditure ably assisted by then Deptt of Pension & Pensioners Welfare, of what led up to the dismissal of UoI’s Curative Petition No. 126 of 2014 from the information available on official websites.
I urge the functionaries of MoD, MoF and CGDA to read the original and complete orders, parts of which are re-produced below.
From Order of the Hon’ble Principal Bench, Central Administrative Tribunal in OA 655 of 2010: -
“2. Applicants, who are pre-2006 retirees, are claiming…….. The attempt to classify them into separate classes/groups for purpose…. was not found on intelligible differentia, which has a rationale nexus with the object sought to be achieved……..and clarification issued by the respondents vide impugned…. are illegal, arbitrary, discriminatory, unreasonable and unjust, as according to the applicants in the clarification/modification order dated 3.10.2008 respondents had added and deleted certain words, which completely changed its meaning as per the recommendations of the Commission as accepted by the Government. (emphasis supplied).
xxxxx xxxxx xxxxx
24. The stand taken by the respondents (UoI) is that the recommendations of the VI CPC, as accepted by the Government vide Resolution dated 29.08.2008 and further clarification issued by the respondents is in consonance with the recommendations so accepted. It is stated that there may be a slight change in the word used in the clarification issued by the Government subsequently but has the same meaning as in the latter part of para 5.1.47 of the report of the VI CPC as accepted by Government. The phrase “minimum of the pay in the Pay Band” has been used and this phrase carries the same meaning i.e., the pay from which a pay band starts. (emphasis supplied) It is stated that the clarification on OM dated 3.10.2008 was issued after due exercise in Department of Pension and Pensioners Welfare and Ministry of Finance and with the approval of the Hon’ble Minister of State. It is further stated that VI CPC has not made any recommendation for complete parity between the pre-1996 and post-1-1-1996 pensioners. Therefore, question of allowing complete parity between pre-1996 and post 1.1.1996 pensioners would not arise. It is stated that the OM dated 1.9.2008 has been further clarified on 3.10.2008 that pension calculated at 50% of the minimum of the pay in the pay band plus grade pay would be calculated at the minimum of the pay in the pay band (irrespective of the pre-revised sale of pay) plus the grade pay corresponding to the pre-revised pay scale. (emphasis supplied)
25. In order to decide the matter in controversy, at this stage, it will be useful to extract the relevant portions of para 5.1.47 of the VI CPC recommendation, as accepted by the Resolution dated 29.08.2008, para 4.2 of the OM dated 1.9.2008 and subsequent changes made in the garb of clarification dated 3.10.2008, which thus read:
Resolution No.38/37/8-P&PW (A) dated 29.08.2008-Para 5.1.47 (page 154-155), Para 4.2 of OM DOP&PW OM No. No.38/37/8-P&PW (A) dated 1.09.2008 (page 38 of OA), OM DOP&PW OM No. No.38/37/8-P&PW (A) dated 3.10.2008.
The fixation as per above will be subject to the provision “that the revised pension, in no case, shall be lower than 50% of the sum of the minimum of the pay in the pay band and the grade pay thereon corresponding to the pre-revised pay scale form which the pensioner had retired. The fixation as per above will be subject to the provision that the revised pension, in no case, shall be lower than 50% of the (sum of the) minimum of the pay in the pay band plus (and) the grade pay (thereon) corresponding to the pre-revised pay scale from which the pensioner had retired.
The Pension Calculated at 50% of the [sum of the] minimum of the pay in the pay band [and the grade pay thereon corresponding to the pre-revised pay scale] plus grade pay would be calculated (i) at the minimum of the pay in the pay band (irrespective of the pre-revised scale of pay plus) the grade pay corresponding to the pre-revised pay scale. For example, if a pensioner had retired in the pre-revised scale of pay of Rs.18400-22400, the corresponding pay band being Rs.37400-67000 and the corresponding grade pay being Rs.10000 p.m., his minimum guaranteed pension would be 50% of Rs.37400+Rs.10000 (i.e. Rs.23700)
26. As can be seen from the relevant portion of the resolution dated 29.8.2008 based upon the recommendations made by the VI CPC in paragraph 5.1.47, it is clear that the revised pension of the pre-2006 retirees should not be less than 50% of the sum of the minimum of the pay in the Pay Band and the grade pay thereon corresponding to the pre-revised pay scale held by the pensioner at the time of retirement. However, as per the OM dated 3.10.2008 revised pension at 50% of the sum of the minimum of the pay in the pay band and the grade pay thereon, corresponding to pre-revised scale from which the pensioner had retired has been given a go-by by deleting the words “sum of the” “and grade pay thereon corresponding to the pre-revised pay scale” and adding “irrespective of the pre-revised scale of pay plus” implying that the revised pension is to be fixed at 50% of the minimum of the pay, which has substantially changed the modified parity/formula adopted by the Central Government pursuant to the recommendations made by the VI CPC and has thus caused great prejudice to the applicants. According to us, such a course was not available to the functionary of the Government in the garb of clarification thereby altering the recommendations given by the VI CPC, as accepted by the Central Government. According to us, deletion of the words “sum of the” “and grade pay thereon corresponding to the pre-revised scale” and addition of the words “irrespective of the pre-revised scale of pay plus,” as introduced by the respondents in the garb of clarification vide OM dated 3.10.2008 amounts to carrying out amendment to the resolution dated 29.08.2008 based upon para 4.1.47 of the recommendations of the VI CPC as also the OM dated 1.9.2008 issued by the Central Government pursuant to the aforesaid resolution, which has been accepted by the Cabinet. Thus, such a course was not permissible for the functionary of the Government in the garb of clarification, that too, at their own level without referring the matter to the Cabinet. (emphasis supplied)
27. We also wish to add that the Pay Commissions are concerned with the revision of the pre-revised pay scales’ and also that in terms of Rule 34 of the CCS (Pension) Rules, 1972 the pension of retirees has to be fixed on the basis of the average emoluments drawn by them at the time of retirement. Thus, the pre-revised scale from which a person has retired and the emoluments which he was drawing at the time immediately preceding his retirement are a relevant consideration for the purpose of computing revised pension and cannot be ignored. As such, it was not permissible for the respondents to ignore the pre-revised scale of pay for the purpose of computing revised pension as per the modified parity in the garb of issuing the clarifications, thereby altering the modified parity/formula, which was accepted by the Central Government (emphasis supplied) vide its resolution dated 29.08.2008.
28. The above view is also fortified by paras 137.15, 137.20 and 137.21 of the V CPC recommendations, as reproduced below, leading to modified parity, which were also accepted by the VI CPC and accepted by the Central Government and thus read:
“Immediate relief to pensioners
137.15 While the work relating to revision of pension of pre 1.1.1986 retires by notional fixation of their pay shall have to be undertaken by the pension sanctioning authorities to be completed in a time-bound manner, we suggest that the pensioners should be provided some relief immediately on implementation of our recommendations. The pension disbursing authorities may be authorized to consolidate the pension by adding (a) basic pension; (b) personal pension, wherever admissible; (c) dearness relief as on 1.1.1996 on basic pension only; (d) Interim Relief (I and II) and (e) 20% of basic pension. The consolidated pension shall be not less than 50% of the minimum pay, as revised by the Fifth CPC, of the post held by the pensioner at the time of retirement. This may be stepped up by the pension disbursing authorities, wherever feasible, to the level of 50% of the minimum pay of the post held by the pensioner at the time of retirement. (emphasis supplied)
xxx xxx xxx xxx xxx
Modified parity conceded
137.20 We have given our careful consideration to the suggestions. While we do not find any merit in the suggestion to revise the pension of past retirees with reference to maximum pay of the post held at the time of retirement, as revised by the Fifth CPC, there is force in the argument that the revised pension should be not less than that admissible on the minimum pay of the post held by the retiree at the time of retirement, as revised by the Fifth CPC. We have no hesitation in conceding the argument advanced by pensioners that they should receive a pension at least based on the minimum pay of the post (emphasis supplied) as revised by Fifth Pay Commission in the same way as an employee normally gets the minimum revised pay of the post he holds. We recommend acceptance of this principle, which is based on reasonable considerations.
137.21 The Commission has decided to enunciate a principle for the future revision of pensions to the effect that complete parity should normally be conceded up to the date of last pay revision and modified parity (with pension equated at least to the minimum of the revised pay scale) be accepted at the time of each fresh pay revision. This guiding principle which we have accepted would assure that past pensioners will obtain complete parity between the pre-‘86 and post-‘86 pensioners but there will be only a modified parity between the pre-‘96 and post-‘96 pensioners. The enunciation of the principle would imply that at the time of the next pay revision say, in the year 2006, complete parity should be given to past pensioners as between pre-1996 and post-1996 and modified parity be given between the pre-2006 and post-2006 pensioners.”
29. From the above extracted portion it is clear that the principle of modified parity, as recommended by the V CPC and accepted by the VI CPC and accepted by the Central Government provides that revised pension in no case shall be lower than 50% of the sum of the minimum of the pay in the pay band and grade pay corresponding to revised pay scale from which the pensioner had retired. According to us, as already stated above, in the garb of clarification, respondents interpreted minimum of pay in the pay band as minimum of the pay band. This interpretation is apparently erroneous, (emphasis supplied) for the reasons:
a) if the interpretation of the Government is accepted it would mean that pre-2006 retirees in S-29 grade retired in December, 2005 will get his pension fixed at Rs.23700/- and anther officer who retired in January 2006 at the minimum of the pay will get his pension fixed at Rs.27350/-. This hits the very principle of the modified parity, which was never intended by the Pay Commission or by the Central Government;
b) The Central Government improved upon many pay scales recommended by the VI CPC. The pay scale in S-29 category was improved from Rs.39200-67000/- plus Grade Pay of Rs.9,000/- with minimum pay of Rs.43280/- to Rs.37,400-67000/- with grade pay of Rs.10,000/- with minimum pay of Rs.44,700/- (page 142 of the paper-book). If the interpretation of the Department of Pension is accepted, this will result in reduction of pension by Rs.4, 00/- per month. The Central Government did not intend to reduce the pension of pre-2006 retirees while improving the pay scale of S-29 grade;
c) If the erroneous interpretation of the Department of Pension is accepted, it would mean that a Director level officer retiring after putting in merely 2 years of service in their pay band (S-24) would draw more pension than a S-29 grade officer retiring before 1.1.2006 and that no S-29 grade officer, whether existing or holding post in future will be fixed at minimum of the pay band, i.e., Rs.37, 400/-. Therefore, fixation of pay at Rs.37,400/- by terming it as minimum of the pay in the pay band is erroneous and ill conceived; and
d) That even the Minister of State for Finance and Minister of State (PP) taking note of the resultant injustice done to the pre-11.2006 pensioners (pages 169-170) had sent formal proposal to the Department of Expenditure seeking rectification but the said proposal was turned down by the officer of the Department of Expenditure on the ground of financial implications. Once the Central Government has accepted the principle of modified parity, the benefit cannot be denied on the ground of financial constraints and cannot be said to be a valid reason.(emphasis supplied.)
30. In view of what has been stated above, we are of the view that the clarificatory OM dated 3.10.2008 and further OM dated 14.10.2008 (which is also based upon clarificatory OM dated 3.10.2008) and OM dated 11.02.2009, whereby representation was rejected by common order, are required to be quashed and set aside, which we accordingly do. Respondents are directed to re-fix the pension of all pre-2006 retirees w.e.f. 1.1.2006, based on the resolution dated 29.08.2008 and in the light of our observations made above. Let the respondents re-fix the pension and pay the arrears thereof within a period of 3 months from the date of receipt of a copy of this order.
OAs are allowed in the aforesaid terms, with no order as to interest and costs.”
From the Order of the Hon’ble High Court of Delhi in WP (C) 1535/2012 with WP (C) 2348-50/2012
UNION OF INDIA & ANR - Petitioners versus CENTRAL GOVT. SAG & ORS – Respondents: -
xxxx xxxx xxxx
“2. The only issue therefore which survives is, with respect to paragraph 9, of the office memorandum aforenoted which makes it applicable with effect from September 24, 2012, and thereby denying arrears to be paid to the pensioners with effect from January 01, 2006.
3. In short, the Government of India has tacitly admitted that it was in the wrong and that the Tribunal is correct.
xxxx xxxx xxxx
8. We are in complete agreement with the reasoning of the Division Bench of the Punjab & Haryana High Court and adopt the same and do not burden ourselves any further. We conclude by noting that as regards the substance of the view taken by the Tribunal, even the Central Government accepts its correctness, but insists to make the same applicable prospectively.
9. The writ petitions are dismissed. The decision of the Full Bench of the Tribunal is upheld but without any order as to costs.”
Order of the Hon’ble Supreme Court in SLP (C) No. 23055 of 2013 and Order of the Hon’ble Supreme Court in Review Petition (C) No. 2492 of 2013 were upheld by the Hon’ble Court by dismissing the Curative Petition (Civil) No. 126 of 2014