U. Sarathchandran, Judicial Member.
1. The common issue involved in these four cases is whether the pension of the retired railway officials has to be fixed based on the scale of pay enjoyed by the individual official at the time of their retirement or the scale of pay of the post from which they retired, for determining 50% of the minimum of the corresponding revised pay band plus the Grade Pay as per the VIth Central Pay Commission (CPC) recommendations? Hence a common order is passed in these four cases.
2. OA No. 180/389/2015 has been filed by National Federation of Railway Pensioners and two other individuals. The grievance of the applicants pertains to the refusal on the part of the respondents to grant minimum pension in PB-2 Rs. 9,300-34,800/- plus Rs. 4,200/- to those who retired in the post carrying the IVth CPC scale of pay of Rs. 1,400-2,300/-. Some of the applicants retired from the post carrying the IVth CPC scale of pay of Rs. 1,200/1,320-2,040/- were also granted with the Vth CPC replacement scale of pay of Rs. 4,500-7,000/-. Head Clerks, Chargeman 'B', Ward Keepers/Stores/Traveling Ticket Inspectors/Station Masters who were in the IVth CPC scale of pay of Rs. 4,500-7,000/- were to be given the Vth CPC replacement scale of Rs. 5,000-8,000/-. Assistant Station Masters in the IVth CPC scale of pay of Rs. 1,200-2,040/- were granted the Vth CPC replacement scale of pay of Rs. 4,500-7,000/-. During implementation of the VIth CPC recommendations the posts which carried Vth CPC scale of pay of Rs. 5,000-8,000/- and those carried the scale of pay of Rs. 4,500- 7,000/- were granted the replacement pay in PB-2 plus Grade Pay of Rs. 4,200/- and PB-1 plus Grade Pay of Rs. 2,800/- respectively. According to the applicants they have the right to receive the minimum pension of the pay of the post last held by them vide Annexure A1(A) RBE No. 8/1999 dated 15.1.1999. However, subsequently referring to Railway Board order RBE No. 24/2010 dated 2.2.2010 followed by a clarificatory Railway Board RBE No. 42/2010 dated 18.3.2010 (Annexures A4 & A5 respectively) the pension of the retired employees were re-fixed at a lower stage, though all such pensioners were more than 75 years of age. The overpayment was directed to be recovered. Applicants rely on the judgments of the High Court of Punjab & Harayana in Agia Ram & Ors. v. Union of India & Ors. - CWP No. 9581-CAT of 2011 and Union of India v. Darshan Lal Bali & Ors. - CWP No. 8563 of 2014 and connected cases (copies of which are marked as Annexures A8 and A10) in which it was held that the minimum pension has to be fixed at 50% of the minimum of the pay band plus Grade Pay corresponding to the pay scale attached to the post held by the pensioner at the time of retirement. According to the applicants Annexure A8 judgment in Agia Ram (supra) was affirmed by the apex court vide Annexure A9 order dismissing the SLP filed against it.
3. In OA No. 180/850/2015 the applicant retired from service as Supervisor/Permanent Way on 30.4.2004. On the date of his retirement the scale of pay attached to the post of Permanent Way Mistry held by him at that time was Rs. 1,400-2,300/4,500-7,000/- which was revised as Rs. 5,000-8,000/- with retrospective effect from 1.11.2003. During the implementation of the VIth CPC recommendations the pay band corresponding to Rs. 4,500-7,000/- was only PB-1 plus Grade Pay of Rs. 2,800/- but the corresponding scale of pay attached to the post of Supervisor/Permanent Way with effect from 1.1.2006 is PB-2 plus Grade Pay of Rs. 4,200/-. The applicant also relies on the aforementioned decisions of the Punjab & Harayana High Court and claims that he is entitled to receive monthly pension of Rs. 6,750/- and the corresponding family pension.
4. In OA No. 180/851/2015 the applicants are two retired Permanent Way Mistries and the widows of two retired Permanent Way Mistries. According to them the Permanent Way Mistry had a scale of pay of Rs. 1,400- 2,300/-/Rs. 4,500-7,000/- which was revised as Rs. 5,000-8,000/- with effect from 1.11.2003. They also have similar contentions and prayers as sought for in OA No. 180/850/2015.
5. In OA No. 180/859/2015 at the time of his retirement on 30.4.1997 the applicant was a Supervisor/Works/Construction who had his lien in the then Mysore Division of the Southern Railway. He retired from service while working in the construction organization at Calicut under the control of respondent No. 3. The scale of pay of Rs. 1,400-2,300/-/Rs. 4,500-7,000/- attached to the post of Supervisor/Works was revised as PB-2 plus Grade Pay of Rs. 2,800/- but the revised pay band attached to the post of Supervisor /Works is in PB-2 plus Grade Pay of Rs. 4,200/-. Relying on the aforesaid decisions of the High Court of Punjab & Harayana the applicant prays for fixing his monthly pension at Rs. 6,750/- with effect from 1.1.2006 and consequential revision in the family pension payable.
6. The above OAs were resisted by the respondents contending that in the light of the dictum of the Hon'ble Apex Court in K.S. Krishnaswamy etc. v. Union of India & Anr. - 2007 SCC (L&S) 491 wherein it was held that 'it is common knowledge that corresponding increase in any Pay Commission is of the scale of pay and not of the post' the pensioners in these OAs are entitled to the VI CPC revision of pension based on the Pay band corresponding to the scale of pay they were placed at the time of their retirement. The respondents contend that the benefit of the higher replacement pay scale brought to the post subsequent to their retirement will not be applicable to the applicants for the purpose of the VI CPC revision of their pension. As per the VI th CPC recommendations they are entitled to have pension not less than 50% of the minimum of the pay in the pay band and Grade Pay of the corresponding pre-revised scale of pay from which they retired. According to the respondents the posts carrying Vth CPC pay scale of Rs. 4,500-7,000/- were placed by the VIth CPC Pay Band- 1 Rs. 5,200-20,800/- with Grade Pay of Rs. 2,800/- and the posts having the pay scale of Rs. 5,000-8,000/- were placed in the PB-2 Rs. 9,300-34,800/- plus Grade Pay Rs.4,200/-. According to the respondents what is material is the pay scale the applicants were placed at the time of their retirement and not what has occurred to the pay scale of the post subsequent to their retirement.
7. In OAs Nos. 180/850/2015 & 180/851/2015 the respondents contend that only 17.26% of the posts of Permanent Way Mistries were restructured and upgraded and were re-designated as Supervisor (Permanent Way) and merged with the post of Junior Engineer/Permanent Way Grade-II in the scale of Rs. 5,000-8,000/-. As the applicants/husbands of applicants Nos. 3&4 in OA No. 180/851/2015 did not come within the 17.26% posts so upgraded vide Annexures R1 and R2 order they are not entitled to have the upgraded scale of Rs. 5,000-8,000/- as they retired as Supervisors (Permanent Way) on 30.6.1987 & 30.6.1993 respectively in the pay scale of Rs. 4,500-7,000/-.
8. In the case of the applicant in OA No. 180/859/2015 respondents contend that when he retired from service on 30.4.1997 as Supervisor/Works/Construction from Calicut his basic pay was Rs. 5,900/- in the scale of pay of Rs. 4,500-7,000/- and that the benefit of cadre restructuring occurred to the post was not applicable to the construction units. Respondents contend that since the applicant in OA No. 180/859/2015 was working in the construction unit at Calicut he was not entitled to the benefits of the restructuring order and therefore, the decisions relied on by him were not applicable.
9. Heard both sides at length. Mr. T.C. Govindaswamy learned counsel appeared for the applicants and Mrs. K. Girija, learned counsel appeared for the respondents. Perused the record.
10. Shri Govindaswamy was heavily relying on the judgments of the High Court of Punjab and Haryana in Agia Ram's case (supra) and Darshan Lal Bali's case (supra). He further relied on judgment dated 2.8.2016 of the Madras High Court in Writ Petition No. 13207/2013, Union of India & Anr. v. S.P.S. Vains (retired) & Ors. - (2008) 2 SCC (L&S) 838, order dated 1.11.2011 of the Principal Bench of this Tribunal in OA No. 655/2010 and connected cases, order dated 16.8.2013 in OA No. 715/2012 of this Tribunal, order dated 12.6.2015 in OA No. 1135/2013, order dated 29.9.2015 in OA No. 310/1650/2014 of the Madras Bench of this Tribunal, order dated 31.8.2015 in OA No. 310/542/2014 of the Madras Bench of this Tribunal, order dated 9.9.2015 in OA No. 310/541/2014, order dated 1.9.2015 of Chandigarh Bench of this Tribunal in OA No. 455/HR/2012 and connected cases, order dated 20.11.2014 of the Principal Bench of this Tribunal in OA No. 937/2010 and connected case, order dated 24.9.2015 of the Principal Bench of this Tribunal in RA No. 10/2015 in OA No. 937/2010, order dated 5.1.2016 of the Hon'ble apex court in SLP No. 22402/2015 in Union of India v. Darshan Lal Bali & Ors., the judgment dated 18.1.2016 of the High Court of Kerala in OP (CAT) No. 169/2015 and a decision of this Tribunal dated 2.9.2015 in OA No. 180/172/2014.
11. Mrs. Girija, learned counsel for the respondents on the other hand was relying on the judgment of the Apex Court in K.S. Krishnaswamy's case (supra), a Full Bench decision dated 31.10.2011 of the of this Tribunal at the Madras Bench in OA No. 436/2010 and connected case, order dated 15.12.2006 of the Madras Bench of this Tribunal in OA No. 288/2006, order dated 25.7.2013 in OA No. 100/2012 of this Tribunal, judgment of the apex court in State of Rajasthan & Ors. v. Jagdish Narain Chaturvedi - (2009) 12 SCC 49, Subhash Chandra & Anr. v. Delhi Subordinate Services Selection Board & Ors. - (2009) 15 SCC 458 and State of UP & Anr. v. Synthetics & Chemicals Limited & Anr. - (1991) 4 SCC 139.
12. Shri Govindaswamy, learned counsel for the applicants was heavily relying on the decision of the Punjab & Harayana High Court in Agia Ram's case (supra) and Darshan Lal Bali's case (supra) wherein it was held that once the pay scale to the posts of Mistry/Supervisors is deemed to have been revised then pension has to be re-fixed taking in view of the revised pay scale for the post. Shri Govindaswamy submitted that Agia Ram's decision (supra) was upheld by the apex court while dismissing the SLP filed against it in Annexure A8 order. He submitted that and Darshan Lal Bali's decision (supra) was also upheld by the apex court by the order dated 5.1.2016 in SLP No. 22402/2015. Shri. Swamy submitted that the Full Bench decision of this Tribunal in OA 436/ 2010 and connected case (Madras Bench) was set aside by the Madras High Court in the Order dt. 2- 8-2016 in W.P. No. 13207/2013.
13. Smt. Girija, learned counsel for the respondents, relying on V.M. Salgaocar & Brothers Private Limited v. Commissioner of Income Tax - (2000) 5 SCC 373 submitted that when the apex court dismisses the SLP as it does not consider it to be a fit case for exercising its jurisdiction under Article 136 of the Constitution, there is no merger of the High Court's decision with the apex court's decision in the SLP. She pointed out that the principle of merger applies only in case the apex court considers the decision of the High Court/Tribunal in the appeal heard after allowing the SLP. She submitted that therefore dismissal of the SLPs arising from Agia Ram and Darshan Lal Bali decisions (supra) of the Punjab & Harayana High Court does not ipso facto mean that it has got the stamp of approval from the Hon'ble apex court. She further submitted that in the light of the the decision in K.S. Krishnaswamy (supra) the law relating to the question as to whether the pension has to be fixed based on the revised pay corresponding to the pay scale from which the official had retired has been laid down by the apex court. She pointed out that under Art. 141 of the Constitution of India K.S. Krishnaswamy decision (supra) has a supervening effect over the decisions contra on the issue, rendered by all other judicial bodies.
14. In K.S. Krishnaswamy decision the apex court was dealing with a Government of India official memorandum dated 17.12.1998 fixing pension of the retired officials during the implementation of the Vth CPC recommendations. Though with effect from 1.1.1996 pension of all the pensioners irrespective of their date of retirement was notified as not to be less than 50% of the minimum of the pay scale in the revision of the post last held by the pensioner, the Government of India by OM dated 11.5.2001 clarified the instructions in the OM dated 17.12.1998 as follows:
'In the course of implementation of the above order, clarifications have been sought by Ministries/ Departments of the 'post last held' by the pensioner at the time of his/ her superannuation. The second sentence of O.M. dated 17.12.1998, i.e. 'pension of all pensioners irrespective of their date of retirement shall not be less than 50% of the minimum pay in the revised scale of pay w.e.f. 1.1.1996 of the post last held by the pensioner', shall mean that pension of all pensioners irrespective of their date of retirement shall not be less than 50% of the minimum of the corresponding scale as on 1.1.96, of the scale of pay held by the pensioner at the time of superannuation/retirement. '
While dealing with the aforementioned OM dated 11.5.2001 the apex court held that both the OMs dated 17.12.1998 and 11.5.2001 clarifies the policy resolution of the Government and that both are rather complimentary to each other. It was further observed by the apex court that it is common knowledge that an increase in the pay scale in any recommendation of the Pay Commission is the corresponding increase in the pay scale. Mrs. Girija, submitted that when the VIth CPC recommendations were implemented, the Government of India in Annexure R-III /2 OM dated 1.9.2008 has been careful in making clear that the fixation of pension shall be with reference to the pre-revised pay scale from which the pensioner had retired. She submitted that Annexure R-III/2 OM dated 1.9.2008 was approved by the Railway Board in Annexure R-III RBE No. 105/2008 dated 8.9.2008. Paragraph 4.2 of Annexure R-III /2 OM dated 1.9.2008 reads :
'4.2. The fixation of pension will be subject to 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 the case of HAG+ and above scales, this will be fifty percent of the minimum of the revised pay scale.
15. Mrs. Girija brought to the notice of this Tribunal that the wordings in paragraph 4.2 have been incorporated by the Government of India in Annexure R-III/2 OM dated 1.9.2008 taking a cue from the verdict in K.S. Krishnaswamy (supra). She further submitted that though the present grievance of the applicants has its origin from the mode of fixation of pension as envisaged in Annexure R-III (in OA No. 389/2015) and from the afore-quoted paragraph 4.2 of the Government of India OM dated 1.9.2008, there was no challenge against the aforesaid OM in any of these OAs. This Tribunal finds force in this contention.
16. It is worth noting that in none of the judicial precedents relied on by the applicants the dictum of the apex court in K.S. Krishnaswamy (supra) was considered nor was there challenge of paragraph 4.2 of the Government of India OM dated 1.9.2008 as adopted by the Railway Board. Therefore, this Tribunal is of the view that the aforementioned judgments relied on by the learned counsel for the applicants have to be distinguished from these four cases on hand. The contentions of the respondents are based on the apex court decision in K.S. Krishnaswamy (supra) and also based on paragraph 4.2 of the OM of the Government of India dated 1.9.2008.
17. With reference to OAs Nos. 180/850/2015 and 180/851/2015 this Tribunal finds merit in the contention of the respondents that the applicants therein are not entitled to the benefits of the upgradation as they did not come within the 17.26% of the posts which were upgraded. Moreover, the applicants had retired long before the upgradation so happened.
18. Similarly in OA No. 180/859/2015 also the claim of the applicant for the pension is based on the pay of the restructured cadre. He was not eligible for restructured cadre as he was working in the construction units and projects whereas the restructuring was applicable only to the open line establishment. Therefore, in the case of the applicants in OAs Nos. 180/850/2015, 180/851/2015 and 180/859/2015 on account of their sheer inherent ineligibility for the higher grade they cannot base their claim for a higher pension of the post which has been upgraded/restructured.
19. Taking stock of the pleadings,arguments and record of both sides this Tribunal is of the view that the applicants in these OAs are not entitled to revised pension as claimed. Nevertheless, in the cases of recovery of excess pension sought to be made from the pensioners it requires interference by this Tribunal. It is now well settled by the apex court decision in State of Punjab & Ors. v. Rafiq Masih (White Washer) etc. - (2015) 4 SCC 334 that recovery of excess payments is impermissible in law in the following cases:
'12. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement.
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Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover. ' 20. There is nothing to show that the applicants were colluding with the pension sanctioning authority or with the pension disbursing agency in the matter of the excess pension they have been paid. Therefore, this Tribunal is of the view that the respondents cannot recover the excess payments, if any, made to any of the applicants in these cases. Ordered accordingly. The respondents are therefore, directed to instruct the pension disbursement agency to refund the excess amounts, if any, paid to the applicants and also not to effect any further recovery from their monthly pensions. It is made clear that in such cases where over payments were made the respondents shall consider issuing revised pension payment orders. Ordered accordingly. 21. The Original Applications are disposed of as above. There shall be no order as to costs.