Important Central Administrative Tribunal (CAT) Judgement
Central Administrative Tribunal
Principal Bench
New Delhi
OA No.571/2017
Order Reserved on: 13.02.2018
Pronounced on: 17.04.2018
Hon'ble Mr. K.N. Shrivastava, Member (A)
G.C. Yadav,
S/o late Kamal Singh Yadav,
(aged about 61 years)
(retired as Deputy Secretary)
R/o H.No.1627/3, Lane No.6,
Rajiv Nagar, Mata Road,
Gurugram-122001.
- Applicant
(By Advocate Shri L.R. Khatana)
-Versus-
1. Union of India
Through Secretary to the Govt. of India,
Ministry of Home Affairs,
North Block, New Delhi-110001.
2. Secretary to the Govt. of India,
Department of Pension & Pensioners' Welfare,
Ministry of Personnel, Public Grievances & Pensions,
North Block, New Delhi-110001.
3. Secretary to the Govt. of India,
Department of Personnel & Training,
Ministry of Personnel, Public Grievances & Pensions,
North Block, New Delhi-110001.
-Respondents
(By Advocate Shri N.D. Kaushik)
(OA No.571/2017)
O R D E R
The
applicant retired from the post of Deputy Secretary in the Ministry of
Home Affairs, Government of India with effect from the afternoon of
31.12.2015 on attaining the age of superannuation. His date of birth is
01.01.1956. He has been deprived of the benefits of 7th Central Pay
Commission's recommendations, which came into effect w.e.f. 01.01.2016
on the ground that he retired prior to that date i.e. 31.12.2015.
2.
The applicant submitted his representation dated 14.12.2015 (Annexure
A-4 colly.) to the Secretary, Department of Personnel & Training
(DoP&T) (respondent no.3) stating therein that he would cease to be a
Government servant in the midnight of 31.12.2016 and thus acquired the
status of a pensioner in the forenoon of 1st January, 2016. Hence, he is
entitled to all the pensionary benefits viz. gratuity, fixation of
pay/pension as per 7th Central Pay Commission’s recommendations. The
representation dated 14.12.2015 of the applicant was forwarded by the
Additional Secretary (S&V), DoPT to the Joint Secretary, Pension,
Department of Pension and Pensioner's Welfare (DoP&PW) vide letter
dated 29.02.2016. The relevant portion of the said letter is extracted
below:
"2. In his representation, Shri Yadav has
contended that the pensionary benefits accrue to a person when he
acquires the status of Pensioner. As per the judgment of the Hon'ble
Supreme Court in the case of S. Banerjee, the persons born on 1st
January, 2015 were in Government service upto midnight of 31st December,
2015 and acquired the status of pensioner only in the forenoon of 1st
January, 2016. Applying the law laid down by the Hon'ble Supreme Court
in the case of S. Banerjee, the persons born on 1st January, 1956
acquired the status of pensioner only in the forenoon of 1st January,
2016. The recommendations of the 7th Pay Commission are likely to be
implemented with effect from 1st January, 2016."
3.
Pursuant to the implementation of the 7th Central Pay Commission's
recommendations, DoP&PW (respondent No.2) issued Annexure A-2 Om
dated 04.08.2016 revising the pension of pre-2016 pensioners/family
pensioners. The grievance of the applicant is that his retiral benefits
have been fixed in terms of Annexure A-2 OM, treating him as a pre-2016
retiree whereas he should be treated as a retiree w.e.f. 1.1.2016 and
thus the 7th Central Pay Commission's benefits should accrue to him.
4. Respondent No.2 considered the representation dated 14.12.2015 of
the applicant, which was duly forwarded by the DoPT vide aforementioned
letter dated 29.02.2016 and vide impugned Annexure A-1 OM dated
03.01.2018 has declined the request of the applicant. The relevant
portions of this OM are reproduced below:
"4. In the
case of Shri Yadav, he actually retired on 31.12.2015 and was not in
service on 1.1.16. Judgment of Hon'ble Supreme Court in the case of Shri
S. Benerjee has no relevance in his case. In fact Rule 5 (2) of CCS
(Pension) Rules, has already been amended and as per the amended rule
date of voluntary retirement is treated as the last working day.
Therefore, those who retired voluntarily on 1.1.2016 would be eligible
for pay and pension benefits of 7th CPC as a post 1.1.2016 retiree.
5.
Since Shri Yadav retired on superannuation on 31.12.2015, he is to be
treated as a pre-2016 pensioner and is accordingly entitled to the
benefit in revision of pension under the OM No.38/37/46-P&PW(A)(ii),
dated 4.8.16."
5. Aggrieved by the impugned Annexure
A-1 OM dated 03.01.2017, the applicant has filed the instant OA praying
for the following relief:
"B) That this Hon'ble
Tribunal may be pleased to hold and declare that the impugned
orders/action of the respondents is illegal, arbitrary, discriminatory,
unconstitutional and violative of Articles 14 and 16 of the Constitution
of India and quash and set aside the same and be pleased to further
hold that since the Applicant superannuated with effect from the
afternoon of 31.12.2015 and relinquished the charge of the post of
Deputy Secretary in the afternoon of that date, he, as per law, is
deemed to have effectively retired on or with effect from 1.1.2016 and
therefore, cannot be treated as pre-2016 pensioner and direct the
respondents to grant the retiral benefits such as fixation of pension,
DCRG, commutation of pension, leave encashment etc. accordingly and pay
the arrears thereof with 12% interest within a specified time-frame."
6.
Pursuant to the notices issued, the respondents entered appearance and
filed their reply in which they have broadly made the following
important averments:
6.1 The applicant retired from Government
service on 31.12.2015 and accordingly he has been treated as a pre-2016
pensioner and his pensionary benefits have been fixed in terms of the OM
dated 4.8.2016 (Annexure A-2) of the DoP&PW.
6.2 As per the
provisions of FR 56(a), a Government servant whose date of birth is
first of a month shall retire from service in the afternoon of the last
day of the preceding month on attaining the age of 60 years. Hence, the
applicant, whose date of birth is 1.1.1956 is deemed to have been
retired in the afternoon of 31.12.2015.
6.3 The judgment of Hon'ble Supreme Court in
S. Banerjee v.Union of India,
[AIR 1990 SC 295], relied upon by the applicant in para 4 (d) of the
OA, is not relevant in the instant case. It is stated that Shri S.
Banerjee had retired voluntarily and his date of retirement was 1.1.1986
whereas in the instant case the applicant retired on attaining the age
of superannuation in the afternoon of 31.12.2015 and as such was not in
service on 1.1.2016.
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