Important Judgement: 7th CPC Pension Benefit - Retired from service on one day prior to 1.1.2016
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-
Union of India
Through Secretary to the Govt. of India,
Ministry of Home Affairs,
North Block, New Delhi 110001.
Secretary to the Govt. of India,
Department of Pension & Pensioners' Welfare,
Ministry of Personnel, Public Grievances & Pensions,
North Block, New Delhi - 110001.
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 )
2 (OA No.571/2017)
ORDER
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 31.12.2015 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.
7. The applicant has filed rejoinder to the
reply, in which no substantial issue has been raised except saying that
it is settled position of law by a catena of judgments of Hon'ble
Tribunal, Hon'ble High Courts and Hon'ble Supreme Court that a person
whose date of birth is 1st of a month is deemed to have retired from
service from that date only.
8. On completion of the pleadings the
case was taken up for hearing the arguments of the parties on
13.02.2018. Arguments of Shri L.R. Khatana, learned counsel for the
applicant and that of Shri N.D. Kaushik, learned counsel for the
respondents were heard. Shri Khatana, besides reiterating the averments
made in the OA relied on the following judgments to buttress his
argument that the applicant is deemed to have retired from service on
1.1.2016 since his date of birth is 1.1.1956:
i) Judgment of the Kerala High Court in Union of India v. George , [2004 (1) ATJ 150]; held:
"
16. We are unable to accept this contention. The two officials had
actually continued in service till the midnight of December 31, 1995. It
is only from January 1, 1996 that they had ceased to be in service and
acquired the status of pensioners. Resultantly their claim to pension
had to be determined at the rate prevalent on the date. This is
precisely what the Tribunal has given them. The case is in no way
different from that of Banerjee. In both cases, the pay had been paid
till December 31"
ii) Judgment of Hon'ble Karnataka High
Court in Union of India & others v. Col. Bhupinder Singh (Retd.)
Major, [Writ Appeal No.3897 of 2005, dated 11.09.2009], held:
"The
decision reported in 1989 Supp. 2 SCC 486 (S. Banerjee v. Union of
India & Ors.) has been followed by the learned Single Judge while
passing the impugned order. In that case the appellant had filed an
application for voluntary retirement which was accepted from the
forenoon of 1st January, 1986 and in that view of the matter, he was
found to be entitled to the benefit of para 17.3 of the recommendation
of the Pay Commission. This decision is not applicable to the case of
the respondent in the instant case as per Army Rules, which is
applicable to the respondent who retired on 31.12.1995. None of the
decision cited by the respondent are applicable to the case on hand. On
the other hand, the decision cited by the respondent are applicable to
the case on hand. On the other hand, the decision cited by the learned
counsel for the appellants are applicable on all the fours to the case
on hand and the impugned order calls for interference."
iii)
Judgment of Hon'ble Andhra High Court in Union of India and Ors. V.
P.S.R. Kumar Sinha and Anr. ̧ [2006 (2) ALT 354:2006 (3) ALD 57]; held
"
6:17.Supreme Court Ruling In S. Benerjee v. Union of India, a definite
finding is on record by their Lordships of the Supreme Court of mdia
that when the employee has retired on the last date of the month, his
date of retirement has to be treated as 1st date of succeeding month.
6:18. It is a direct decision on the issue before us.
6:19.
Full Bench Decision of A.P. High Court Principal Accountant General
A.P. v. C. Subba Rao While answering Point No. 2 the Full Bench of this
Court categorically held as follows:
A Government servant who
would be retiring on the last day of the month would cease to be
Government servant by mid- night of that day and he would acquire status
of pensioner and therefore he would be entitled for all the benefits
given to a pensioner with effect from first day of the succeeding
month."
iv) Order of this Tribunal in Satish Kumar v. Union of Inida & Ors., [OA No.792.2004, dated 25.11.2004], held:
"It
is trite law that for want of any decision to the contrary of the High
Court, under whose jurisdiction the Bench of the Tribunal is situated, a
decision of the High Court of another State would be binding as a
precedent on the Tribunal and having regard to the decision of the Apex
Court in S. Banerjee vs. Union of India, AIR 1990 SC 295, relied upon by
Kerala High Court, the case of the applicant, in all fours, is covered
by the ratio decidendi of the decision of the High Court. Having regard
to the fact that he is deemed to have retired on 1.4.2004 special
dispensation as mentioned in para 3 of the OM ibid would apply to him."
8.1
Shri Khatana concluded his arguments by submitting that the case of the
applicant is squarely covered by the above judgments and hence the
relief claimed may be granted.
9. Leaned counsel for the
respondents by and large reiterated the averments made in the reply
filed on behalf of the respondents.
10. I have considered the
contentions of the learned counsel for the parties and have gone through
the pleadings and documents annexed thereto. All the judgments of the
Hon'ble High Courts as well as of the Tribunal relied upon by the
applicant are primarily based on the judgment of the Hon'ble Apex Court
in S. Banerjee (supra), wherein it has been held as under:-
"The
question that arises for our consideration is whether the petitioner
has retired on January 1, 1986. We have already extracted the order of
this Court dated December 6, 1985 whereby the petitioner was permitted
to retire voluntarily from the service of the Registry of the Supreme
Court with effect from the forenoon of January 1, 1986. It is true that
in view of the proviso to rule 5(2) of the Rules, the petitioner will
not be entitled to any salary for the day on which he actually retired.
But, in our opinion, that has no bearing on the question as to the date
of retirement. Can it be said that the petitioner retired on December
31, 1985? The answer must be in the negative. Indeed, Mr. Anti Dev
Singh, learned counsel appearing on behalf of the respondents, frankly
conceded that the petitioner could not be said to have retired on
December 31, 1985. It is also not the case of the respondents that the
petitioner had retired from the service of this Court on December 31,
1985. Then it must be held that the petitioner had retired with effect
from January 1, 1986 and that is also the order of this Court dated
December 6, 1985. It may be that the petitioner had retired with effect
from the forenoon of January 1, 1986 as per the said order of this
Court, that is to say, as soon as January 1, 1986 had commenced the
petitioner retired. But, nevertheless, it has to be said that the
petitioner had retired on January 1, 1986 and not on December 31, 1985.
In the circumstances, the petitioner comes within the purview of
paragraph 17.3 of the recommendations of the Pay Commission."
11.
This judgment has attained finality and thus holds the field today. It
is clearly held by the Hon'ble Apex Court in S. Banerjee (supra) that in
case of all those Government servants whose date of birth is 1st of a
month, they are supposed to have retired from that date only.
12.
In the instant case, the applicant's date of birth is admittedly
1.1.1956 and thus relying on the ratio of law laid down by the Hon'ble
Apex Court in S. Banerjee (supra), he is deemed to have retired from
service on 1.1.2016. Hence, he is entitled for getting all his
pensionary benefits in accordance with the 7th Central Pay Commission's
recommendations. Accordingly, this OA is allowed. The impugned Annexure
A-1 order is declared illegal and accordingly quashed and set aside. The
respondents are directed to fix the retiral benefits of the applicant
in accordance with the 7th Central Pay Commission's recommendations
which have been implemented vide O.M. No. 38/37/2016-P&PW(A)( i),
(ii) & resolution dated 04.08.2016 in respect of pensioners retiring
on or after 1.1.2016. This shall be done within a period of three
months from the date of receipt of a certified copy of this order. No
costs.
(K.N. Shrivastava)
Member (A)
'San.'
