Dear veterans,
This case was decided by Punjab & Haryana court
in favour of petetitioner but the Govt has gone for
appeal in Supreme Court where theappeal was
rejected.This benefit has already been availed by the officers
in 1996 itself.. CoS report has recommended the same for JCOs and below
which the govt.decided to give to JCOs and below, though giving it a colour
of ONE RANK ONE PAY ,but the big brothers are pressing the govt
to give ONE RANK ONE PENSION they want ,by which they
stand to gain amount from Rs.5000/- to Rs.10,000/-PM but the
same has been refused by almost all the Political Paries
whenever they were in power. Please give your comment in
unmincing words.
Please think over this wether you want to press for the
early release of benefit accruing from CoS Report or keep waiting for
the other demand being asked in the Joint memorandum which may
not be possible in a near future.
IN THE HIGH COURT OF PUNAJB AND HARYANA
ATCHANDIGARH
Date of Decision: May 26, 2008
Gurmail Singh Dahdli and others ........ Petitioners
versus
Union of India and others ............. Respondents
CORAM
HON'BLE MR.JUSTICE HEMANT GUPTA.
HON'BLE MR.JUSTICE MOHINDER PAL
1.Whether Reporters of local papers may be allowed to
see the judgment ?
2. To be referred to the Reporters or not ?
3.Whether the judgment should be reported in the Digest ?
-.-
Present: Shri Bhim Sen Sehgal, Advocate for the petitioner
Ms. Ranjana Shahi, Central Govt. Standing Counsel
for the respondents.
HEMANT GUPTA, J.
The petitioners are former Personnel Below Officers Rank
(hereinafter to be referred as “PBOR”) of the Indian Air Force.
All the petitioners are pre 01.01.1996 retirees. The grievance
of the petitioners is that 5th Central Pay Commission was
constituted to examine the pay and pension structure of the
civil servants, including armed forces. The recommendations
made by the said Pay Commission were accepted by the
Government of India and a circular was issued on 07.06.1999
relating to pensionary benefits in respect of commissioned
officers and PBOR. Such pensionary benefits were revised
w.e.f. 01.01.1996. There was an anomaly in respect of
pensionary benefits payable to PBOR which led to widespread
Civil Writ Petition No. 6223 of 2007
resentment and ultimately a committee of Group of Ministers
wasconstituted by the Government of India in January, 2005
to look into the issue. The Group of Ministers agreed that
there is justification for improving the pensionary benefits
of the PBOR, particularly the three lowest ranks i.e., Sepoy,
Naik and Havildar, who had been completely
neglected. In pursuance of the recommendations of the
Group of Ministers,Government of India, Ministry of Defence,
issued a circular on 01.02.2006 regarding the improvement
in person of PBOR but w.e.f. 01.01.2006. The petitioners
claim that pensionary benefit circulated vide circular dated
01.02.2006 is illegal to the extent of restricting the benefit
from 01.01.2006 as the same to that extent is arbitrary,
discriminatory, without any rational basis and, thus, the
petitioners are entitled to the benefit of pay fixation in terms
of circular dated 01.02.2006 from the date all other ranks
have got their pension revised i.e. w.e.f. 01.01.1996.
Learned counsel for the petitioners have pointed out that
Reckonable emoluments for the purposes of pensionary
benefits in respect of PBOR is not the actual pay drawn
but the maximum pay of the pay scale, including 50% of
the highest classification allowance, if any, of the rank
held and group in which paid continuously for at least
10 months at the time of discharge. That was the decision
taken in respect of PBOR while accepting the
recommendations of 3rd and 4th Pay Commission and
while accepting the pay recommendation of 5th Pay
Commission which is evident from circular dated 03.02.1998.
The relevant extract from circular dated03.02.1998
communicating acceptance of recommendations of
5th CentralPay Commission by the Government of India to
the Chief of Army Staff, theChief of Naval Staff and the
Chief of the Air Staff, reads as under:-
Civil Writ Petition No. 6223 of 2007
3. Reckonable emoluments:-
3.1 The term 'Reckonable Emoluments' will mean
Emoluments Reckonable for
Category Retiring / Service/
Invalid pension
Family pension
All types ofgratuities
Officers
Pay including rank pay, stagnation increment andNPA,
if any last drawn.Pay including Rank Pay,Stagnation
increment and NPA, if any, last drawn Pay including
Rank Pay, stagnationincrement and NPA, if any, plus
Dearness Allowanceadmissible on the date of retirement /
invalidment / death.
Personnel Below Officer Rank
Maximum pay of the pay scale, including 50% ofthe highest,
classification allowance, if any, of the rank held and group in
which paid.
Pay including classification allowance, stagnation increment,
if any, last drawnby the individual.
Pay including classification allowance plus stagnation
increment, if any, plus Dearness Allowance admissible on
the date of retirement /Invalidment/ death.Pay, Non-
Practising Allowance, Classification Allowance,
Rank Pay and Stagnation increment.
3.2 xx xx xx xx
I. The term reckonable emoluments shall mean:-
(a) Officers:- xx xx xx xx xx
(b) P BORs including NCEs ( E):- Maximum of scale of pay
of the rank and group in the pre-revised scales plus 50%
of the highest classification pay appropriate to the pay
group plus actual Dearness Allowance upto AICII 1436
and Interim Relief I & II. For calculation of gratuity and
family pension, basic pay, Classification Pay actually
drawn will be included in computing reckonable
emoluments”.
However, while issuing circular on 7th June, 1999
in respect of implementation of Government's decision
on the recommendations of 5th Pay Commission allowing
pensionary benefits in respect of commissioned
Civil Writ Petition No. 6223 of 2007
officers and PBOR, it was circulated as under:-
“ 2.1 COMMISSIONED OFFICERS
Post & Pre 1.1.96 cases
(a) Pension shall continue to be calculated at 50% of the
average emoluments in all cases and shall be subject to a
minimum of Rs.1275/- p.m and a maximum of upto 50%
of the highest pay applicable to Armed Forces personnel
but the full pension in no case shall be less than 50% of
the minimum of the revised scale of pay introduced
w.e.f. 1.1.96 for the rank last held by the Commissioned
at the time of his/ her retirement. However, such pension
shall be reduced pro rata,where the pensioner has less
than the maximum required
service for full pension.
(b) and ( c) xx xx xx xx xx
2.2. P.B.O.R.
Post and pre 1.1.96 cases
(a) The revision of service pension in terms of these
modified orders in respect of PBOR retirees will not be
beneficial except for the rank of JCOs granted Hony.
Commission of Lt. and Captain as the service pension is
calculated at the maximum of the pay scale including 50%
ofhighest classification allowance, if any of the rank and
group in which paid.
(b) and ( c) xx xx xx xx xx”
In terms of clause 2.2 of the above circular, the revision
in the service pension was not beneficial for PBOR
retirees except for the rank of JCO granted honorary
commission. It is the case of the petitioners that three
lowest ranks of the Air Force, such as Sepoy, Nail and
Havildar, were not getting any benefit of revision of
pension as circulated by the Government of India itself.
The Group of Ministers examined the demand of
ex-servicemen claiming same pension for the same
rank etc found that therewas justification in improving
the pensionary benefits of PBOR, particularly
Civil Writ Petition No. 6223 of 2007
three lowest ranks. While accepting the recommendations
of the Group of Ministers on 01.02.2006, it was inter
alia circulated as under:-
“ 2. Finally, GOM unanimously recommended that the
pension of pre 1.1.1996 retiree PBOR may be revised with
reference to the maximum of post 1.1.1996 pay scale. In
addition, the weightage of Sepoy, Naik and Havildar ranks
for past as well as future retirees be increased to 10, 8
and 6 years respectively subject to a maximum qualifying
service of 30 years. The benefit would be given only in
respect of servicepension.
3. The above recommendations of the GOM have been
accepted by the Government. Sanction of the President is
hereby accorded to the modifications to the extent specific
in this letter in the relevant Rules / Regulations /
Instructions concerning pensionary benefits of the PBOR.
4. xx xx xx xx xx
5. The following is added after Para 2.2 (a) of this
Ministry's letter No. 1(1)/99/D/D(Pen/Services) dated
7.6.1999 relating to revision of pension of post and pre-
1.1.1996:
“ With effect from 1.1.2006, pension of pre 1.1.1996
retirees in all ranks of PBOR in Army, Navy and Air
Force for 33 years of qualifying service shall not be less
than 50% of the maximum pay in the revised scales of
pay introduced with effect from 1.1.1996 including 50%
of highest classification allowance, if any, of the rank
and group held continuously for 10 months preceding
retirement subject to a minimum pension of Rs.1913/-
per month. Such pension shall be reduced pro rata
where the pensioner has less than the maximum
qualifying service for full pension that is 33 years.
6 to 8 xx xx xx xx
9. These orders are effective from 1.1.2006. No
arrears are to be given”.
Learned counsel for the petitioners has contended
that pension
Civil Writ Petition No. 6223 of 2007
of pre 01.01.1996 is to be fixed with reference to the
maximum of the pay scale of the post as on 01.01.1996.
Since there was anomaly in respect ofpensionary
benefits payable to PBOR, grant of benefit from
01.01.2006 is wholly unjustified and without any
reasonable basis or nexus with the objective to be
achieved.Learned counsel for the petitioner relies
upon Division Bench Judgment of this Court in
Joginder Singh Saini vs. State of Punjab, 1998
(7) Services Law Reporter 699; Harvinder Singh vs.
State of Punjab and others, 2000(3) Services Law
Reporter, 333; judgement of this Bench in Jai Narayan
Jakhar vs. Union of India and another, CWP
No. 15400 of 2006 decided on 14.01.2008 and Single
Bench judgment of this Court in A.R. Lamba, Ex-Assistant
Director vs. Khadi and Village Industries Commission and
others, 2004(7) Services Law Reporter 743;
Punjab State Cooperative Agricultural Development
Bank Pensioners' Association and others vs.
State of Punjab and others, 2006(1) SCT
633; and Mrs. Suveena Chaudhary vs Chandigarh
Industrial & Tourism Development Corporation Limited,
1998(4) SCT 620 to contend that if there is anomaly in
respect of pensionary benefits, the same can not be
restricted from an artificial date fixed by the respondents.
On the other hand, learned counsel for the respondents
Relied upon Union of India vs. P.N. Menon and others,
(1994) 4 Supreme Court Cases 68 and P.K. Kapur vs.
Union of India and others, (2007)
Supreme Court Cases 425 to contend that cut off date
fixed cannot be said to be arbitrary as the Government
has to manage its affairs out of its own resources which
are limited. Thus, cut off date for grant of additional
benefits has to be allowed within the financial resources
available with the Civil Writ Petition No. 6223 of 2007
Government It was also pointed out that on the basis
of the recommendations of the Group of Ministers,
a conscious decision was taken to improve the pensionary
benefits of PBOR w.e.f. 1.1.2006 and liberalization of
pensionary benefits is an ongoing process and the
Government has to consider and decide from which date
a particular benefit has to be given, therefore, such date
cannot be said to be arbitrary.Pay Commissions are
constituted by the Government of India regarding revision
of pay scales and pensionary benefits to the employees of
the Central Government including armed forces. While
accepting the recommendations of 5th Pay Commission,
no pensionary benefit accrued to PBOR which is apparent from
circular dated 07.06.1999 which is reproduced above. It
would be totally unfair and illogical that while other employees
of the Central Government got the benefit of recommendations
of 5th Pay Commission but the lowest ranks of the Armed
Forces were deprived of any increase in pensionary benefits.
Though it is the stand of the Government of India that a Group
of Ministers was constituted to examine the demands of
ex-servicemen for one rank one pension but the fact remains
that the Group of Ministers found an anomaly in respect of
pensionary benefits payable to PBOR. The recommendation
of the Group of Ministers was that the pension of pre 01.01.1996
retiree PBOR is to be revised with reference to maximum of
post 01.01.1996 pay scales meaning thereby that pension was
to be revised in terms of the maximum of post 01.01.1996 pay
scales. Once in respect of pre 01.01.1996, pension was
required to be re-determined with respect to maximum scale
of the post w.e.f. 01.01.1996,the cut off dated 01.01.2006 l
oses its reasonableness. There is no explanation to pick up
date 01.01.2006 for the grant of revised pensionary Civil Writ
Petition No. 6223 of 2007 benefits to PBOR except that date
has been fixed keeping in view th financial condition of the
Government but the fact that it was an anomaly in the
pensionary benefits payable to PBOR could not be disputed.
Once there was anomaly in respect of pensionary benefits,
pensionary benefits are payable from the date of creation of
anomaly and that interpretation will alone serve the purpose
and the object of removing anomaly.
In P.N. Menon's case (supra), the question was consideration
of Dearness Allowance as part of pay for determining pensionary
benefits. Such merger of Dearness Allowance with pay was
contemplated in respect of government servants who retired on
or after 30.09.1977. Since the right of merger of Dearness
Allowance with pay was created for the first time by the
Government of India in terms of Office Memorandum dated
25.05.1977, such benefit could be restricted to the retirees
after the cut off date. In P.K. Kapur's case (supra), the
petitioner was claiming weightage over and above the
recommendations of 5th Pay Commission, wherein pension
was to be fixed on the basis of last rank held by an officer.
It was held that the weight age granted in terms of
acceptance of 5th Pay Commission has nexus with the last
rank and the period of 33 years of qualifying service was
the outer limit of qualifying service, therefore, there is no
violation of Article14 of the Constitution of India. Both the
aforementioned judgements do not deal with anomaly
which arises on account of implementation of the
recommendations of the Pay Commission.
Para 2.2 of circular dated 07.06.1999 itself recites that
Revision of service pension is not beneficial to PBOR
retirees. Para 5 of circular dated 01.02.2006 is a
clarification to Para 2.2(a) of circular dated 7.6.1999.
Therefore, addition of said paragraph in circular dated
7.6.1999 shows that Civil Writ Petition No. 6223 of 2007
the issue regarding pension was clarified by adding the
paragraph after the recommendations of the Group of
Ministers. Such benefit was not being conferred for the first
time. Still further, the said addition was as a consequence
of anomaly arising in implementation of the recommendations
of the Pay Commission and, thus, the anomaly has to be
removed from the day it arises.
Though financial constraint is a valid criteria for fixing cut off
date for grant of benefits but in the present case, neither the
respondents had given any data in respect of financial
constraints nor such financial constraints can be relevant
when anomaly in the pensionary benefit is sought to be
removed. If all other retirees of Government of India have
got the benefit of revised pension then why the lowest rank
of Armed Forces have been deprived the benefit of revised
pension. Since anomaly is sought to be removed in
pursuance of the recommendations of the Group of
Ministers, PBOR would be entitled to revised pension from
the date otheremployees of the Central Government have
got the revised pensionary benefits. The plea of financial
constraints has been raised in respect of lowest paid
employees of the Armed Forces, when all other categories
of employees including services have been given the benefit.
Suchdiscriminatory treatment is wholly arbitrary.
In Joginder Singh Saini's case (supra), the Court held that
having accepted the factum of anomaly and having taken
decision to remove the same, the Government cannot
arbitrarily fix the date with effect from which the benefit of
revised pay scale is to be given to the petitioners. In
Harwinder Singh's case (supra), the service of the
petitioner was not regularized though 13 other persons
were given the benefit. It was found in Civil Writ Petition
No. 6223 of 2007 that once an approval has been sought,
the same will relate back to the date of the original decision.
If it is not so, the action of the respondents would result in
invidious discrimination. In Jai Narayan Jakhar's case
(supra), a Division Bench of this Court held to the following
effect:-“ Having heard the learned counsel for the parties, we
are of the opinion that the stand of the respondents that the
petitioner is not entitled to the benefit of removal of anomaly
in the Pay Commission is wholly unjustified. It was during the
implementation of 5th Pay Commission report, it was found by
the respondents that there is anomaly in the pay scales.
Once the anomaly in the pay scales is found and sought to be
removed then it has to be removed from the implementation
of the recommendation of the Pay Commission i.e. 01.01.1996.
There is no explanation as to why the said anomaly is sought
To be removed from 10.10.1997. In the absence of any
Explanation of removal of anomaly from 10.10.1997, we do
not find the action of the respondents fixing such date as
justified.Consequently, we hold that the petitioner is entitled
to the revised pay scale of Rs.5220-140-8140/- w.e.f. 01.01.1996.
Thus the petitioner shall be entitled to the retiral benefits on the
said pay scale”.In Punjab State Cooperative Agricultural
Development Bank Pensioners' Association's case (supra),
this Court held to the following effect:-“ .... It is further
appropriate to mention that when anomaly is removed in
the pay scale of a set of employees then it is recognition of a
fact that earlier some mistake has been committed, which
has been rectified later on.
In other words, the concerned set of employees have suffered
on account of delay in payment which rightly belong to them an
in fact that has been paid to others. They cannot be made to
suffer further by imposing an embargo on the arrears of pay
from a date
Civil Writ Petition No. 6223 of 2007 different than the one
anomaly has been removed” .In Suveena Chaudhary's case
(supra), this Court was seized of anomaly in the pay scale of
the post of House Keeper. The Court held to
the following effect:-
“...... It is true that it is always open to an employer to revise the
salaries/ pay scales of its employees and also specify a date
from which the revision of pay scales shall take effect but
where an anomaly if pointed out in the revision of pay scales of
any post and that anomaly is sought to be removed then it
cannot be allowed to be removed from the date when the
employer decides to remove it. In the very nature of things it
must relate back to the date when it existed. There would be no
meaning in removing an anomaly from a date subsequent to the
date when the grades were revised. In other words, if new
grades had to be given by way of removing an anomaly such
grades should take effect from the date when the grades were
originally revised”.
Mr. Hemen Aggarwal, learned Central Government Standing
Counsel appearing for the respondents in some of the cases,
relied upon
Single Bench decision of this Court reported as K.C. Thakur
vs. State of Haryana, 2004 L.I.C. 2240. However, the said
case relates to introduction of a new scheme for pension and,
thus, it was held that the scheme dated 31.05.1999 will not be
applicable to the retirees who retired prior to the applicability
of the aforesaid scheme. It was held that once the employees,
who are governed by Contributory Provident Fund Scheme,
have retired but new Pension Scheme is introduced, they
have no vested right to be covered by the new Pension
Scheme and any relevant date could be fixed for applicability
of the scheme. However, in the present case, it is not a new
scheme which is being introduced but an anomaly which was
noticed in the Civil Writ Petition No. 6223 of 2007
circular granting revised pensionary benefits alone which is
sought to be removed by the recommendations of the Group
of Ministers. Such recommendations have to be given effect
from the date anomaly arises and not from any other date.
In view of the above, we allow the present writ petition and
quash the cut off date 01.01.2006 and clause (9) of circular
dated 1.2.2006 and direct the respondents to grant revised
pensionary benefits to all the petitioners and similarly situated
PBOR within a period of six months from today.
(HEMANT GUPTA)
JUDGE
May 26, 2008 (MOHINDER PAL)
ks JUDGE
Subscribe to:
Post Comments (Atom)
No comments:
Post a Comment