Saturday, November 28, 2015
Anomalies in Revision of pension in r/o Pre-2006 JCOs / ORs pensioners / Family Pensioners
1. Refer G.O.I., MOD letter No. 1(04)/2015/(1)-D(Pen/Pol) dated 3rd Sep 2015 and GOI, Ministry of Personnel, PG & Pensioners, Department of Pension & Pensioners’ Welfare letter No. 38/37/08-P & PW (A) dated 30.07.2015
2. Attention be drawn to the recently issued letter dated 03 Sep 2015 that there are mainly 3 types of anomalies and the same are listed below:-
a.Anomaly No. 1 It is seen from the Annexures A to C to the above letter that formula for calculation of the Pension is as given below on the Basis of 50% of the minimum of the pay in the pay band plus grade pay corresponding to the pre revised pay scale from which the pensioner had retired :-
(i). (Corresponding Basic Pay + Grade Pay + MSP + X Pay (if Applicable)divided by (2 x 33) and multiplied by Length of service + weightage.
(ii.) It is seen that weightage counted for Sepoy, Naik & Havildar and their equivalent ranks in Indian Air Force and Indian Navy are 10, 08 & 06 Yrs respectively and the same is in correct, since these are already increased to 12, 10 & 8 Yrs respectively vide Para 3.1 to G.O.I., MOD Dept of ESW letter No. 1(13)/2012/D (Pen/Policy) dated 17 Jan 2013.
b.Anomaly No. 2 It is also seen that while calculating the Minimum Fitment Pay in the 6th CPC according to 5th CPC Pay table Minimum Starting Salary for the direct recruits’ under that Grade Pay is not stepped to the same. It is further clarified by an example given below:-
i. Example No. 1:- Sepoy Y Group (starting scale 3250) Applicable Grade Pay is 2000, thus 3250 x 1.86 = Rs. 6045 say 6050 + 2000 (GP) + 2000 (MSP) = 10050 whereas starting scale for direct recruits’ with a Grade Pay is 6460 + 2000 (GP) + 2000 (MSP) = 10460 thus a difference of 410 and 50% of same is 205 Per Month in the pension.
ii. Example No. 2:- Sergent Y Group (starting Scale as per 5th CPC was Rs. 4320/-) applicable Grade Pay is Rs. 2800/- thus 4320 x 1.86 = 8035.2 Say 8040 + 2800 (GP) + 2000 (MSP) = 12840 whereas starting scale for direct recruits’ with a Grade Pay is 8560 + 2800 (GP) + 2000 (MSP) = 13360 thus a difference of 520 and 50% of same is 260 Per Month in the pension.
c. Anomaly No. 3 MOD letter No. 1(04)/2015/(1)-D(Pen/Pol) dated 3rd September, 2015 was issued on the basis of G.O.I. Min of Personnel, PG & P, Letter No. 38/37/08-P&PW (A) dated 30 July 2015. Your kind attention is required to please refer Para 3 where it is referring OA No. 655/2010, copy attached for your ready reference.
i. Please do refer Para 12 & 18 and 25 to 30 of OA No. 655/2010 and the same are reproduced herewith for your ready reference:-
"" 12. Now let us advert to last grievance raised by the applicants viz. that even if the modified parity, as recommended by the Pay Commission and accepted by the resolution dated 29.08.2008 is to be taken as criteria for determining pension of pre-2006 retirees, still on account of subsequent clarification issued to para 4.2 of the OM dated 1.9.2008 by the officers of the respondents vide OM dated 3.10.2008 and 14.10.2008 criteria and principles for determining the pension has been given a complete go-bye. Thus, these clarificatory OMs are illegal, arbitrary, discriminatory, unreasonable, unjust and are required to be quashed and set aside. At this stage, we wish to mention that this issue was not raised and considered by the Patna and Bombay Benches of the Tribunal, as such no finding on this aspect was given. However, in paras 66 and 67 of the judgment Patna Bench has given a direction that the Government should examine this aspect of S-29 pay scales retirees being able to retire at the maximum of the pay band 4 pay scale with the grade pay of Rs.10,000/- which would bring their pension to Rs.38,500/-. Suffice it to say that the observation made by the Patna Bench was given without taking into consideration the modified parity as recommended by the Pay Commission and accepted by the Central Government vide its resolution dated 29.08.2008, which formed the basis to grant pension to pre-2006 retirees.
13. In order to determine the issue, at this stage, it will be useful to quote item No.12 of the Resolution No.38/37/08-P&PW (A) dated 29.08.2008 whereby recommendations of the VI CPC, as contained in para 5.1.47, was accepted with certain modifications and thus reads:
S. No. Recommendation
12. All past pensioners should be allowed fitment benefit equal to 40% of the pension excluding the effect of merger of 50% dearness allowance/dearness relief as pension (in respect of pensioners retiring on or after 1/4/2004) and dearness pension (for other pensioners) respectively. The increase will be allowed by subsuming the effect of conversion of 50% of dearness relief/ dearness allowance as dearness pension/ dearness pay. Consequently, dearness relief at the rate of 74% on pension (excluding the effect of merger) has been taken for the purposes of computing revised pension as on 1/1/2006. This is consistent with the fitment benefit being allowed in case of the existing employees. 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 sum of the minimum of the pay in the pay band and the grade pay thereon corresponding to the pre-revised pay scale from which the pensioner had retired. (5.1.47)
Decision of Government
Accepted with the modification that fixation of pension shall be based on a multiplication factor of 1.86, i.e, basic pension + Dearness Pension (wherever applicable) + dearness relief of 24% as on 1.1.2006, instead of 1.74. Based on this resolution, respondents issued OM of even number dated 1.9.2008. Para- 4.2 whereof, which is relevant for the purpose, reads as follows:
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.
14. On the basis of the recommendations made by VI CPC, which stood validly accepted by the Cabinet, it has been argued that principle for determining the pension has been completely altered under the garb of clarification. According to the learned counsel for the applicants on the basis of the aforesaid resolution/modified parity revised pension of the pre-2006 pensioners shall not be less than 50% of the minimum of the pay band + grade pay, corresponding to the pre-revised pay scale from which the pensioner had retired.
15. Applicants in para-11 of the Additional-Affidavit have explained how the Note prepared by a junior functionary (at the level of an Under Secretary) in the Department of Pension & Pensioners Welfare in regard to para-4.2 of the OM dated 1.9.2008 has been given a go-by to the resolution dated 29.08.2008. The Note so prepared has been extracted in this para, which thus reads:
Whether the pension calculated at 50% of the minimum pay in the pay band would be calculated (i) at the minimum of the pay in the pay band (irrespective of the pre-revised scale of pay) plus the grade pay corresponding to the pre-revised pay scale, or (ii) at the minimum of pay pay in the pay band which an employee in the pre-revised scale of pay will be getting as per the fitment tables at Annex I of the CCS (Revised Pay) Rules, 2008 plus the grade pay corresponding to the pre-revised pay scales.ı
16. It is pleaded that first the need for such a doubt being raised is not clear as both the formulation of the CPC in para 5.1.47 as well as in Government Resolution dated 29.8.2008 (Annexure A-7 of the OA) is clear that ıthe fixation of pension will be subject to the provision that the revised pension in no case, shall be lower than fifty percent of the sum of the minimum of the pay in the pay band and the grade pay thereon corresponding to the pre-revised pay scale from which the pensioner had retired.ı (emphasis added). The use of words ısum ofı, ıandı and ıthereonı leaves no doubt that both the minimum of the pay in the pay band and the grade pay have to correspond to the pre-revised pay scale. Second, without bringing out merits or demerits of either formulation, the lower functionary in DOP & PW incorporates in the clarification against item 4.2 in the OM dated 1.9.2008, the first option about ıminimum of pay in the pay band (irrespective of the pre-revised scale of pay)ı. What is worse is that there is no application of mind even at the level of Director and Secretary who merely sign the note and the clarification is issued after obtaining finance concurrence and approval of MOS (PP), without going back to the Cabinet for such a modification.
17. The learned counsel has further argued that the resultant injustice done to the pre- 1-1-2006 pensioners had even been recognized by MOS (F) and MOS (PP) in their letters to the PM and MOS (F) respectively, copies of which are at Annexures A-11 (page 169) and A-12 (page 170) of the OA. A formal proposal was also sent by DOP & PW to Department of Expenditure seeking rectification but was not accepted by the latter. It was also ncorrectly mentioned that the earlier provision in para 4.2 of OM dated 1.9.2008 has been issued in pursuance of the approval of the Cabinet granted to the Report of the Sixth CPC and any change would entail substantial financial implications and this was done only with the approval of the Secretary (Expenditure) without putting up the note to MOS (F) who had imself supported the change. A copy of this Note dated 2.1.2009 is enclosed as Annexure-5
18. As regards the grievance to OM dated 14.10.2008 based on the OM dated 1.9.2008 (as clarified by OM dated 3.10.2008) whereby a revised table (Annexure A-1) of the pre-2006 pensioners pay scale/pay was finalized to facilitate payment of the revised pension/family pension, applicants have prepared a chart in respect of minimum of the pre-revised scales (modified parity) of S 29 along with 5 scales included in PB-4 works out as under and thus reads:
Min of Pre revised scale. Pay in the Pay Band Grade Pay Revised Basic Pay
(2+3) (Rs. Pension 50% of (2+3) (Rs.)
1 2 3 4 5
S-24 (14300) 37400 8700 46100 23050
S-25 (15100) 39690 8700 48390 24195
S-26 (16400) 39690 8900 48590 24295
S-27 (16400) 39690 8900 48590 24295
S-28 (Rs.14300) 37400 10000 47400 23700
S-29 (18400) 44700 10000 54700 27350
The first 4 columns of the above table have been extracted from the pay fixation annexed with MOF OM of 30th August 2008 (referred to in para 4.5 (iii) above).Revised pension of S 29 works out to Rs.27350 which has been reduced to Rs.23700 as per DOP OM of 3-10-2008 (para 4.8 (B) below).
It was explained during arguments that pay in the Pay Band indicated in column No.2 above table relates to the pay in the revised pay scale corresponding to the minimum pay in the pre-revised pay scale.
25. In order to decide the matter in controversy, at this stage, it will be useful to extract the relevant portions of para 5.1.47 of the VI CPC recommendation, as accepted by the Resolution dated 29.08.2008, para 4.2 of the OM dated 1.9.2008 and subsequent changes made in the garb of clarification dated 3.10.2008, which thus read:
Resolution No.38/37/8-P&PW(A) dated 29.08.2008-Para 5.1.47 (page 154-155) Para4.2 of OM DOP&PW OM No. No.38/37/8-P&PW(A) dated 1.09.2008 (page 38 of OA) OM DOP&PW OM No. No.38/37/8-P&PW(A) dated 3.10.2008
The fixation as per above will be subject to the provision that the revised pension, in no case, shall be lower than 50% of the sum of the minimum of the pay in the pay band and the grade pay thereon corresponding to the prerevised pay scale form which the pensioner had retired.
The Pension Calculated at 50% of the [sum of the] minimum of the pay in the pay band [and the grade pay thereon corresponding to the pre-revised pay scale] plus grade pay would be calculated (i) at the minimum of the pay in the pay band (irrespective of the pre-revised scale of pay plus) the grade pay corresponding to the pre-revised pay scale. For example, if a pensioner had retired in the pre-revised scale of pay of Rs.18400- 22400, the corresponding pay band being Rs.37400-67000 and the corresponding grade pay being Rs.10000 p.m., his minimum guaranteed pension would be 50% of Rs.37400+Rs.10000 (i.e. Rs.23700)
Strike out are deletions and bold letter addition Strike out are deletions and bold letters addition.
26. As can be seen from the relevant portion of the resolution dated 29.8.2008 based upon the recommendations made by the VI CPC in paragraph 5.1.47, it is clear that the revised pension of the pre-2006 retirees should not be less than 50% of the sum of the minimum of the pay in the Pay Band and the grade pay thereon corresponding to the prerevised pay scale held by the pensioner at the time of retirement. However, as per the OM dated 3.10.2008 revised pension at 50% of the sum of the minimum of the pay in the pay band and the grade pay thereon, corresponding to pre-revised scale from which the pensioner had retired has been given a go-by by deleting the words ısum of theı ıand grade pay thereon corresponding to the pre-revised pay scaleı and adding ıirrespective of the pre-revised scale of pay plusı implying that the revised pension is to be fixed at 50% of the minimum of the pay, which has substantially changed the modified parity/formula adopted by the Central Government pursuant to the recommendations made by the VI CPC and has thus caused great prejudice to the applicants. According to us, such a course was not available to the functionary of the Government in the garb of clarification thereby altering the recommendations given by the VI CPC, as accepted by the Central Government. According to us, deletion of the words ısum of theı ıand grade pay thereon corresponding to the pre-revised scaleı ıand addition of the words ıirrespective of the pre-revised scale of pay plusı, as introduced by the respondents in the garb of clarification vide OM dated 3.10.2008 amounts to carrying out amendment to the resolution dated 29.08.2008 based upon para 4.1.47 of the recommendations of the VI CPC as also the OM dated 1.9.2008 issued by the Central Government pursuant to the aforesaid resolution, which has been accepted by the Cabinet. Thus, such a course was not permissible for the functionary of the Government in the garb of clarification, that too, at their own level without referring the matter to the Cabinet.
27. We also wish to add that the Pay Commissions are concerned with the revision of the pre-revised ıpay scalesı and also that in terms of Rule 34 of the CCS (Pension) Rules, 1972 the pension of retirees has to be fixed on the basis of the average emoluments drawn by them at the time of retirement. Thus, the pre-revised scale from which a person has retired and the emoluments which he was drawing at the time immediately preceding his retirement are a relevant consideration for the purpose of computing revised pension and cannot be ignored. As such, it was not permissible for the respondents to ignore the pre-revised scale of pay for the purpose of computing revised pension as per the modified parity in the garb of issuing the clarifications, thereby altering the modified parity/formula, which was accepted by the Central Government vide its resolution dated 29.08.2008.
28. The above view is also fortified by paras 137.15, 137.20 and 137.21 of the V CPC recommendations, as reproduced below, leading to modified parity, which were also accepted by the VI CPC and accepted by the Central Government and thus read: ıImmediate relief to pensioners
137.15 While the work relating to revision of pension of pre 1.1.1986 retires by notional fixation of their pay shall have to be undertaken by the pension sanctioning authorities to be completed in a time-bound manner, we suggest that the pensioners should be provided some relief immediately on implementation of our recommendations. The pension disbursing authorities may be authorized to consolidate the pension by adding (a) basic pension; (b) personal pension, wherever admissible; (c) dearness relief as on 1.1.1996 on basic pension only; (d) Interim Relief (I and II) and (e) 20% of basic pension. The consolidated pension shall be not less than 50% of the minimum pay, as revised by the Fifth CPC, of the post held by the pensioner at the time of retirement. This may be stepped up by the pension disbursing authorities, wherever feasible, to the level of 50% of the minimum pay of the post held by the pensioner at the time of retirement. (emphasis supplied)
Modified parity conceded
137.20 We have given our careful consideration to the suggestions. While we do not find any merit in the suggestion to revise the pension of past retirees with reference to maximum pay of the post held at the time of retirement, as revised by the Fifth CPC, there is force in the argument that the revised pension should be not less than that admissible on the minimum pay of the post held by the retiree at the time of retirement, as revised by the Fifth CPC. We have no hesitation in conceding the argument advanced by pensioners that they should receive a pension at least based on the minimum pay of the post as revised by Fifth Pay Commission in the same way as an employee normally gets the minimum revised pay of the post he holds. We recommend acceptance of this principle, which is based on reasonable considerations. (emphasis supplied).
137.21 The Commission has decided to enunciate a principle for the future revision of pensions to the effect that complete parity should normally be conceded up to the date of last pay revision and modified parity (with pension equated at least to the minimum of the revised pay scale) be accepted at the time of each fresh pay revision. This guiding principle which we have accepted would assure that past pensioners will obtain complete parity between the pre-ı86 and post-ı86 pensioners but there will be only a modified parity between the pre-ı96 and post-ı96 pensioners. The enunciation of the principle would imply that at the time of the next pay revision say, in the year 2006, complete parity should be given to past pensioners as between pre-1996 and post-1996 and modified parity be given between the pre-2006 and post-2006 pensioners. ı (emphasis supplied)
29. From the above extracted portion it is clear that the principle of modified parity, as recommended by the V CPC and accepted by the VI CPC and accepted by the Central Government provides that revised pension in no case shall be lower than 50% of the sum of the minimum of the pay in the pay band and grade pay corresponding to revised pay scale from which the pensioner had retried. According to us, as already stated above, in the garb of clarification, respondents interpreted minimum of pay in the pay band as minimum of the pay band. This interpretation is apparently erroneous, for the reasons:
(a) if the interpretation of the Government is accepted it would mean that pre-2006 retirees in S-29 grade retired in December, 2005 will get his pension fixed at Rs.23700/- and anther officer who retired in January 2006 at the minimum of the pay will get his pension fixed at Rs.27350/-. This hits the very principle of the modified parity, which was never intended by the Pay Commission or by the Central Government;
(b) The Central Government improved upon many pay scales recommended by the VI CPC. The pay scale in S-29 category was improved from Rs.39200-67000/- plus Grade Pay of Rs.9,000/- with minimum pay of Rs.43280/- to Rs.37,400-67000/- with grade pay of Rs.10,000/- with minimum pay of Rs.44,700/- (page 142 of the paper-book). If the interpretation of the Department of Pension is accepted, this will result in reduction of pension by Rs.4,00/- per month. The Central Government did not intend to reduce the pension of pre-2006 retirees while improving the pay scale of S-29 grade;
(c) If the erroneous interpretation of the Department of Pension is accepted, it would mean that a Director level officer retiring after putting in merely 2 years of service in their pay band (S-24) would draw more pension than a S-29 grade officer retiring before 1.1.2006 and that no S-29 grade officer, whether existing or holding post in future will be fixed at minimum of the pay band, i.e., Rs.37,400/-. Therefore, fixation of pay at Rs.37,400/- by terming it as minimum of the pay in the pay band is erroneous and ill conceived; and
(d) That even the Minister of State for Finance and Minister of State (PP) taking note of the resultant injustice done to the pre-11.2006 pensioners (pages 169-170) had sent formal proposal to the Department of Expenditure seeking rectification but the said proposal was turned down by the officer of the Department of Expenditure on the ground of financial implications. Once the Central Government has accepted the principle of modified parity, the benefit cannot be denied on the ground of financial constraints and cannot be said to be a valid reason.
30. In view of what has been stated above, we are of the view that the clarificatiory OM dated 3.10.2008 and further OM dated 14.10.2008 (which is also based upon clarificatiory OM dated 3.10.2008) and OM dated 11.02.2009, whereby representation was rejected by common order, are required to be quashed and set aside, which we accordingly do. Respondents are directed to re-fix the pension of all pre-2006 retirees w.e.f. 1.1.2006, based on the resolution dated 29.08.2008 and in the light of our observations made above. Let the respondents re-fix the pension and pay the arrears thereof within a period of 3 months from the date of receipt of a copy of this order. OAs are allowed in the aforesaid terms, with no order as to interest and costs.:-
3. The true spirit and the nature of the judgment vide OA No. 655/2010, on the basis of which letter dated 30 July 2015 and MOD letter dated 03 Sep 2015 are issued is defeated, since annexures A to C to letter dated 30 July 2015 have been issued are on the basis of linkage of full pension to 33 years of the service and reduced for the lesser service.
.4 In order to clear the anomalies Basic Pension for the Defense Pensioners for JCOs /ORs may be fixed as Max of a, b & c formula given below will be applicable from 01 Jan 2006 and arrears to be paid from 01 Jan 2006 :-
(a) . 50% of sum of (Minimum of Basic Pay in the Pay band corresponding to Previous Pay Scale + Grade Pay + MSP + X Pay (if applicable)
(b). 50% of sum of (Minimum of Basic Pay in the Pay band corresponding to Previous Pay Scale for direct recruits + Grade Pay + MSP + X Pay (if applicable)) in accordance with Page 43 of Govt. Notification No. 470 dated 29th Aug 2008 Section – II. The same are re-produced below :-
“Entry pays in the revised pay structure for direct recruits appointed after 01.01.2006”
Pay Band 1 (5200 – 20200)
Grade Pay Pay in the Band Total
1800 5200 7000
1900 5830 7730
2000 6460 8460
2400 7510 9910
2800 8560 11360
Pay Band- 2 ( 9300-34800)
Grade Pay Pay in the Band Total
4200 9300 13500
4600 12540 17140
4800 13500 18150
©. If Basic Pension as arrived as para 4 a or 4 b is lower than No 1(13)/2012/d(Pen/Policy0 dated 17-01-2013 as revised from 24 Sep 2012 higher Basic Pension will be applicable.
Attached annexures A and B