L.N. Mittal, Judicial Member
1. Facts in the case are not very much in dispute. Rajinder Kapila applicant retied as Junior Telecom Officer (JTO) w.e.f 01.04.1988 from service under the respondents. At the time of his retirement, the applicant was in the pay scale of Rs. 1640-2900/-. The said scale was revised to Rs. 5500-9000/- w.e.f. 01.01.1996 and further revised to Rs. 6500-10500/- in the year 1997. Pension of the applicant was revised accordingly.
2. Case of the applicant is that as per recommendations of the 6th Central Pay Commission (CPC), cadre of JTO has been granted Pay Band-2 of Rs.9300-34800/- with Grade Pay of Rs. 4600/- corresponding to pre-revised pay scale of Rs. 7450-11500/-. Government of India (GoI), vide Office Memorandum (O.M.) dated 01.09.2008 (Annexure A-4), accepted the recommendations of the 6th CPC with some modifications, regarding revision of pension of Pre-2006 pensioners/family pensionsers etc. According to this O.M., the revised pension in no case shall be lower than 50% of the minimum of the pay in the Pay Band plus the Grade Pay corresponding to the pre-revised pay scale from which the pensioners had retired. Revised pension of the applicant was accordingly fixed at Rs. 6750/- by taking Pay Band (PB) Rs. 9300- 34800/- with Grade Pay (GP) of Rs. 4200/- i.e. at 50% of Rs. 9300/- (minimum of the pay band) plus GP of Rs. 4200/- equal to Rs. 13,500/-. Claim of the applicant, however, is that corresponding revised pay of JTO is in the PB of Rs. 9300-34800/- with GP of Rs. 4600/- and minimum pay therein comes to Rs. 13,860/- plus GP Rs. 4600/- equal to Rs. 18460/- and, therefore, revised pension of the applicant at Rs. 50% thereof comes to Rs. 9230/- per month.
3. The applicant made various representations staking the aforesaid claim. Receiving no response thereto, the applicant filed O.A. No. 971/PB/2009 which was disposed of by the Tribunal vide order dated 31.05.2011 directing the respondents to take decision in the matter within two months. Thereupon, order dated 30.09.2011 (Annexure A-1) has been passed by the respondents, rejecting the claim of the applicant for higher pension and holding that his revised pension of Rs. 6750/- is correct. The applicant has impugned the said order in the instant O.A. and has sought the following relief:
(i) Quash/ set aside the order NO. CCA/PB/PEN/Rajinder Kapila/2011-12/1156 dated 30.09.2011, issued by Respondent no. 1, copy Annexure A-1 vide revision of pension in the revised pay band of Rs. 9300-34800 with grade pay of Rs. 4600/- w.e.f. 1.1.2006 has been declined to the applicant;
(ii) Directions may be issued to the respondents in general and Respondent no. 2 in particular to consider and grant the proper pension w.e.f. 01.10.2006 to the applicant after re-fixing the same in terms of Government of India letter No. 38/37/08-P&PW (A) dated 01.09.2008 i.e. 50% of the Minimum of the pay in the Pay Band + Grade Pay corresponding to the pre-revised pay scale of the applicant of Rs. 9300-34800+Grade Pay Rs. 4600/- i.e. Rs. 9230/- per month and grant him all consequential benefits including interest on the delayed payment @18% on the amount of difference between the pension paid to the applicant w.e.f. 01.10.2006 and the pension actually due for this period, from the date it became due till the date of actual payment
4. Stand of the respondents is that w.e.f. 01.01.2006, post of JTO was upgraded in pre-revised scale of Rs. 7450-11500/- corresponding to revised PB-2 of Rs. 9300-34800/- with GP of Rs. 4600/- w.e.f. 01.01.2006 vide O.M. dated 03.06.2009 (Annexure R (C) at page 134 of the paper-book) and since the applicant had retired w.e.f. 01.04.1988, the applicant is not entitled to the benefit of the up gradation of the post w.e.f. 01.01.2006 and his revised pension has been correctly fixed. His pre-revised pay scale was Rs. 6500-10500/- and its corresponding revised PB-2 is Rs. 9300-34800/- with GP of Rs. 4200/- and, therefore, revised pension of the applicant has been correctly fixed at Rs. 6750/-. It was also submitted that the post of JTO was upgraded to pre-revised scale of Rs. 7450-11500/- on the basis of higher qualification of Bachelor of Engineering for JTOs, whereas the applicant was Diploma holder and is not entitled to the benefit of up gradation of the post. Bar of limitation was also raised. Respondents relied on judgment dated 23.11.2006 (Annexure R-2) of Honble Supreme Court in Civil Appeal NO. 3174/2006 titled K.S. Krishnaswamy etc. Vs. Union of India & Anr. coupled with letter dated 17.12.1998 (Annexure R-3) which was under consideration in the said case. Various other pleas were also taken.
5. The applicant filed replication wherein he controverted the stand of the respondents and reiterated his version. He also relied on Full Bench judgment dated 01.11.2011 of Principal Bench of the Tribunal in O.A. No. 0655/2010 (with connection OAs) titled Central Government SAG (S-29) Pensioners Association through its Secretary Sh. Sant Bhushan Lal and Anr. Vs. Union of India & another(Annexure A-7).
6. The O.A. of the applicant was allowed by this Tribunal vide order dated 23.05.2012 relying on the judgment in the case of Central Govt. SAG (S-29) Pensioners Association (supra) and distinguishing the judgment in the case of K.S. Krishnaswamy (supra) on facts. Respondents no 1 & 2 of the O.A. filed CWP No. 20240/2012 in Honble High Court of Punjab and Haryana, assailing the aforesaid order of the Tribunal. Honble High Court vide order dated 21.02.2013 remitted the matter to this Tribunal to decide the same afresh in the light of observations made in the said order. The parties were given liberty to submit additional pleadings, if any. Thereupon, the parties submitted some additional documents. Observations made in paragraphs 7 & 8 of the said order are reproduced hereunder:-
7. Suffice, it would be to mention here that if the plea taken by respondent No. 1 that the revised pay scale has been granted w.e.f. 01.01.2006 at a uniform rate to all the JTOs irrespective of the qualifications possessed by them, there would be some substance in his contention that he is entitled to the re-fixation of his pension in the pay band of 9300-34800 plus G.P. 4600. However, if the plea taken by the petitioners that instead of uniform pay scale for all the JTOs, distinction was drawn on the basis of qualification possessed by them, the claim of respondent No. 1 in that event shall have to be redetermined. In this backdrop, the qualification possessed by respondent No. 1 on the date of his retirement also becomes relevant .
8. The applicability of the decision of the Full Bench of Central Administrative Tribunal in OA No. 655 of 2010, Central Government SAG (S-29) Pensioners Association & another v. Union of India and Anr., would also require a fresh look by the Tribunal after determining the question of facts briefly noticed above.
7. We have heard counsel for the parties and perused the case file.
8. Counsel for the applicant reiterated that vide O.M. dated 03.06.2009 (Annexure R (C), the pre-revised scale of the post of JTO was revised to Rs. 7450-11500/- corresponding to revised PB of Rs. 9300-34800/- with GP of Rs. 4600/- and, therefore, the applicant is entitled to revised pension of Rs. 9230/-. Reference was also made to observations of Honble High Court in paragraphs 7 of the order dated 21.02.2013 as extracted herein before. It was contended that there is single pre-revised scale Rs. 7450-11500/- for all JTOs and, therefore, the applicant is entitled to succeed. Reliance was also placed on the judgment Annexure A-7 in the case of Central Govt. SAG (S-29) Pensioners Association (Supra). It was pointed out that even according to Annexure R(C), there is single uniform per-revised scale of Rs. 7450-11500/- for all JTOs corresponding to PB-2 Rs. 9300-34800/- with GP of Rs. 4600/- and, therefore, the applicant is entitled to revised pension of Rs. 9230/- per month. It was contended that there can be no distinction in revised pension on the basis of cut-off date of retirement i.e. between those who retired prior to 01.01.2006 and those who retired after 01.01.2006. As regards limitation, it was submitted that in view of previous O.A. No. 971/PB/2009 filed by the applicant, the instant O.A. is within limitation as it was filed on 09.11.2011 i.e. soon after passing of impugned order dated 30.09.2011.
9. On the other hand, counsel for respondents reiterated that in this case, vide Annexure R(C), there was up gradation of post of JTO w.e.f. 01.01.2006 and benefit thereof is not available to the applicant who had retired long before 01.01.2006. It was submitted that if there had been up gradation of scale only, then the benefit could have been available to the applicant. In this regard, reference was made to advice dated 25.09.2011 (Annexure R (A) which has been quoted in the impugned order Annexure A-1 to the following effect:
So far as up gradation of the post of JTO of DOT and placing them in the pre revised scale of Rs. 7450-11500 corresponding to the revised pay band PB-2 of Rs. 9300-34800 with grade pay of Rs. 4600 is concerned, this up gradation was made applicable w.e.f. 01/01/2006. Since Sh. Rajinder Kumar Kapila had already retired from service w.e.f. 01/04/1988, he is not eligible for this upgraded pay scale in spite of his academic qualification.
Reliance has been placed on judgment of Honble Supreme Court in the case of K.S. Krishnaswamy (supra) read with O.M. dated 17.12.1998 (Annexure R-3) and letter dated 24.10.1997 (Annexure A-8) regarding higher qualification of B.E. for the upgraded post of JTO, which the applicant did not possess.
10. Counsel for the applicant pointed out that higher qualification of B.E. was not applicable to the existing incumbents of the post.
11. We have carefully considered the matter. At the outset, we may notice that the instant O.A. is not barred by limitation because revision of pension was ordered vide O.M. dated 01.09.2008 (Annexure A-4), although w.e.f. 1.1.2006. The applicant made representations against alleged wrong revision of his pension and also field O.A. NO. 971/PB/2009, which was decided by this Tribunal vide order dated 31.05.2011. Pursuant thereto, respondents passed order dated 30.09.2011 (Annexure A-1), which has been challenged in the instant O.A., filed immediately thereafter on 09.11.2011 i.e. well within limitation. Thus the applicant has been pursuing his remedy without any slackness or delay. Consequently objection of the respondents regarding bar of limitation is overruled.
12. It is undisputed that if the applicant is held entitled to pre-revised scale of Rs. 7450-11500/- corresponding to revised PB of Rs. 9300-34800/- with GP of Rs. 4600/-, then his revised pension may have to be fixed at Rs. 9230/- as claimed by him. Equally undisputed is the fact that if the applicant is held entitled to pre-revised scale of Rs. 6500-10500/- corresponding to revised PB Rs. 9300-34800/- with GP of Rs. 4200/-, then his revised pension fixed at Rs. 6750/- is correct. Consequently, the crucial question to be determined is the pre-revised scale to which the applicant is to be held entitled to.
13. Having carefully considered the matter, we find substance in the contention of counsel for respondents. O.M. dated 01.09.2008 (Annexure A-4) is similar to O.M. dated 17.12.1998 (Annexure R-3) (regarding recommendations of 5th CPC related to retirement benefits). The said O.M. dated 17.12.1998 (Annexure R-3) along with other related O.Ms were considered by Honble Supreme Court in the case of K.S. Krishnaswamy (supra) and the issue was clinched in favour of the Union of India. The said judgment is thus not distinguishable on facts. Following the said judgment, the applicant in the instant O.A. has to be non-suited.
14. In the aforesaid context, it has to be noticed that the respondents have also placed on record O.M. dated 11.02.2009 (Annexure RA- I) at page 143-144 of the paper-book with M.A. 060/00034/2015. This O.M. was issued after considering various representations and references regarding revision of pension of Pre-2006 pensioners. It has been specifically decided in paragraph 5 of the said O.M. as under:
5. In accordance with the instructions contained in para 4.2 of this Departments OM of even number dated 1.9.2008, 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. Therefore, the benefit of upgradation of posts subsequent to their retirement would not be admissible to the pre-2006 pensioners in this regard.
Consequently, the applicant who had retired w.e.f. 01.04.1988 is not entitled to the benefit of up gradation of the post of JTO w.e.f. 01.01.2006 i.e. subsequent to the retirement of the applicant. This O.M. has not even been impugned in the instant O.A. In view of the aforesaid O.M., there remains no manner of doubt that the applicant is not entitled to the benefit of up gradation of the post of JTO w.e.f. 01.01.2006 to the pre-revised scale of Rs. 7450-11500/- corresponding to revised PB of Rs. 9300-34800/- with GP of Rs. 4600/-.
15. Judgment in the case of Central Govt. SAG (S 29) Pensioners Association (Supra) does not help the applicant regarding revised PB and GP on the basis of which his revised pension has to be fixed because according to the said judgment, revised pension of the applicant, in no case, shall be less than 50% of the minimum of the pay in the revised PB plus the GP corresponding to the pre-revised pay scale from which the pensioner/applicant had retired, as also mentioned in paragraph 4.2 of the O.M. dated 01.09.2008. In the instant case, the respondents have already fixed revised pension of the applicant at 50% of the minimum of pay in the revised PB Rs. 9300-34800/- with GP of Rs. 4200/-.
16. The distinction of up gradation of post of JTO on the basis of higher qualification of Degree of B.E. is also relevant. The applicant was diploma holder as submitted by counsel for
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the applicant during the course of hearing. It is correct that existing incumbents of JTO with lower qualification if in service on 01.01.2006 were also entitled to the benefit of up gradation of the post. However, the applicant was also not the existing incumbent of the post of JTO when it was upgraded w.e.f. 01.01.2006 because the applicant had retired long back w.e.f. 01.04.1988. Consequently, despite being single uniform pay scale for the upgraded post of JTO, the applicant is not entitled to the revised pension claimed by him for the reasons recorded herein before. 17. Since we are upholding the revised pension of the applicant fixed by the respondents at 50% of the minimum of the revised PB with GP, we need not deal with the question of the qualifying service of the applicant being less than 33 years. 18. Observations in paragraphs 7 & 8 of order dated 21.02.2013 of Honble High Court, as reproduced herein before, were not finding of Honble High Court and rather the matter has been remitted to this Tribunal for re-determination. The aforesaid observations were made only as tentative observations being reasons for remitting the matter for fresh determination by the Tribunal. 19. For the reasons aforesaid, we find that revised pay of the applicant has been rightly fixed at Rs. 6750/- w.e.f. 01.01.2006 and he is not entitled to revised pension of Rs. 9230/- claimed by him. The impugned order (Annexure A-1), therefore, does not suffer from any infirmity or illegality. The O.A. is accordingly dismissed with no order as to costs.