follow-up action planned.
Monday, August 5, 2013
Pre-2006 Retirees to get Sixth Pay Panel’s Pension - Hindustan Times - India-news
-- In a major relief to senior citizens who retired from government service before 2006, the Delhi High Court has directed the Centre to fix their pension on the basis of recommendation of the sixth pay commission. The court also ordered payment of enhanced pension amount with retrospective effect from January 1, 2006 — when the pay commission recommendations came into effect.
The move would substantially increase the pre-2006 retirees' pension and bring them on par with those who retired after the pay panel recommendations were implemented. The order came while the court upheld a central administrative tribunal (CAT) order of 2011, which said that government employees who retired before 2006 are also entitled to the benefits of the sixth pay commission.
This court was hearing a petition by Central Government Pensioners Association. Dismissing the appeal filed by the Centre against the CAT order, a bench of justices Pradeep Nandrajog and V Kameswar Rao said: "A direction is issued to the respondents (Centre) to re-fix the pension of the petitioners accordingly within a period of two months. In case, the arrears are not paid within a period of two months, it will also carry interest at 9% with effect from March 1, 2013."
CAT had quashed the August 29, 2008 government resolution which amended the recommendations of the sixth pay commission due to which the pre-2006 retirees were getting lower pension than the post-2006 retirees. The retired employees had told the tribunal that there could be a difference of over Rs 25,000 in the pension of a person retiring on January 1, 2006 from the one retiring a day before.
In the court, the government submitted to pay the pre-2006 retirees increased pension only from September 24, 2012 when it was finally approved following the CAT order but the bench asked it grant them retrospectively from 2006 when the pay commission was implemented.
"The only issue which survives after the CAT order is with respect to office memorandum which makes it applicable with effect from September 24, 2012 denying arrears to the pensioners with effect from January 1, 2006," said the court.
"The government of India has admitted that it was in the wrong and that the tribunal is right. We conclude by noting that as regards the substance of the view taken by the Tribunal, even the government accepts its correctness, but insists to make the same applicable prospectively. This cannot be allowed," said the bench.
This must be carefully studied and
follow-up action planned.
follow-up action planned.
A further amplification of the news item published by Hindustan Times - India-news as given in the link above
Wrong Implementation of Govt. Decision On ‘Minimum Assured Pension’ in r/o Armed Forces Pensioners With Less Than 33 Years’ Service
As is well known, Armed Forces Officers retire at an early age and majority of them fall below 33 years’ service (including erstwhile weightage). This group of Officers has been cheated by the Bureaucrats by reducing ‘minimum assured pension (Modified Parity)’ pro-rata for less than 33 years’ service, which is contrary to the decision of Govt. In this regard, I would like to submit the following points:
1. Govt. decisions on the recommendations of 6CPC, concerning pensioners (including Armed Forces Pensioners), have been notified vide Govt. Resolution dated 29.08.2008.
2. Resolution dated 29.08.2008 is the core document and should have been implemented without any addition/ alteration. This logic has been held legally correct as per the judgements delivered by full bench of CAT (subsequently upheld by Double Bench of Delhi High Court) and by Double Bench of Punjab & Haryana High Court. Supreme Court has recently upheld these judgements.
3. It is not mentioned either in the recommendation of 6CPC or in the acceptance resolution of Govt. that the ‘minimum assured pension (Modified Parity)’ for Past Pensioners is for 33 years’ service and the same will be reduced pro-rata for lesser service.
4. The condition of 33 years’ service and pro-rata reduction has been added at the time of implementing Govt. resolution which is illogical and legally wrong.
5. In view of the addition/alternation to Govt. resolution at the time of implementation, pre-2006 Armed Forces Pensioners having less than 33 years’ service are not getting ‘minimum assured pension’ as decided by the Govt.
A Note on the subject with relevant extracts and links is attached herewith.
Note – Wrong Implementation of Govt. Decision On ‘Minimum Assured Pension’ in r/o Armed Forces Pensioners With Less Than 33 Years’ Service
Instructions for revision of pension in r/o pre-2006 Armed Forces Pensioners have been issued vide GOI MoD letter No. 17(4)/2008(1)/D (Pen/Policy) dated 11.11.2008 whereby Govt. decisions on the recommendations of 6CPC have been implemented. This letter can be accessed here:
As can be seen from Para 1 of above MoD letter, the letter has been issued in pursuance of Govt. decisions on the recommendations of 6CPC notified vide resolution No. 38/37/08-P&PW(A) dated 29.08.2008. This Govt. resolution (issued in Hindi & English) can be accessed here:
Subject of our concern is “Implementation of ‘Minimum Assured Pension’ as decided by Govt. Vide Resolution Item No. 12 in r/o Past Pensioners”. This is quite different from Resolution Item Nos. 2 and 3 which deals with ‘Full Pension’ in r/o Future Pensioners. The term ‘Full Pension’ (i.e. 50% of past ten months average pay or last pay drawn) is not applicable to Past Pensioners. Further reading (if required) of relevant paragraphs 5.1.33, 5.1.47 and 6.5.3 of 6CPC Report will make it amply clear. 6CPC Report can be accessed here:
Resolution Item No. 12 requires a careful reading vide which recommendations of 6CPC (Para 5.1.47 of its report) regarding ‘Fitment Formula’ and ‘Minimum Assured Pension (Modified Parity)’ in r/o pre 2006 pensioners have been accepted by the Govt. Relevant extract of the same is as under:
“The fixation of the pension 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 pre-revised pay scale from which the pensioner had retired.”
Please note that it is not mentioned either in the recommendation of 6CPC or in the acceptance of Govt. that the ‘Minimum Assured Pension’ for Past Pensioners is for 33 years’ service and the same will be reduced pro-rata for lesser service. Please also note the use of words “in no case” and its significance.
Irrespective to the clear Govt. decision as mentioned above, the same has been amended/ altered at the time of implementation. A careful reading of Para 5 of MoD letter dated 11.11.2008 (ref Para 1 above) will reveal the same. Relevant extract of the same is as under:
“The consolidation of pension will further be subject to the provision that the consolidated pension, in no case, shall be lower than fifty per cent of the minimum of the pay in the pay band plus grade pay corresponding to the pre revised scale from which the pensioner had retired/ discharged including Military Service Pay and …………. The pension so calculated will be reduced pro-rata, where the pensioner had less than the maximum required service of 33 years for full pension and in no case it will be less than Rs. 3500/-.”
As already mentioned, the term ‘Full Pension’ is not applicable to the Past Pensioners. As such linkage of this term to Past Pensioners is also wrong.
Now, it is worthwhile to mention that Resolution Item No. 12 has already been examined by H’ble Courts in the case of ‘modified parity of pension’ which was also implemented wrongly whereby ‘minimum of pay in the pay band’ was implemented as ‘minimum of pay band’. In view of pressure arising out from numerous court cases, the same has been corrected wef 24.09.2012 instead of 01.01.2006. Following judgements (related to modified parity of pension) support the main issue of implementation of Govt. resolution dated 29.08.2008 without any addition/alteration. There are three judgements and the judgement of Delhi High Court reproduces relevant paragraphs of other two judgements, which can be accessed here. SLP against these judgements has since been dismissed by H’ble Supreme Court upholding these verdicts:
1. Judgement dated 01.11.2011 in OA No 0655 of 2010, delivered by Principal Bench of CAT (A Full Bench). Para 26 of this judgement is important and relevant extract of the same is given below:
“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 ‘sum of the’ ‘and grade pay thereon corresponding to the pre-revised scale’ and addition of the words ‘irrespective of the pre-revised scale of pay plus’, 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 5.1.47 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.”
Para 26 of above judgement clearly states that no addition/alternation to Govt. resolution is permissible for the functionary of the Govt. at their own level without referring the matter to the Cabinet.
2. Judgement dated 21.12.2012 in Case No. CWP-19641/2009 delivered by a Division Bench of the Punjab & Haryana High Court. Para 26 of this judgement is important and relevant extract of the same is given below:
“Para 26. It is for the aforesaid reasons, we remark that there is no need to go into the legal nuances. Simple solution is to give effect to the resolution dated 29.08.2008 whereby recommendations of the 6th Central Pay Commission were accepted with certain modifications. We find force in the submission of learned counsel for the petitioners that subsequent OMs dated 03.10.2008 and 14.10.2008 were not in consonance with that resolution. Once we find that this resolution ensures that “the fixation of pension 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 pre revised pay scale from which the pensioner had retired”, this would clearly mean that the pay of the retiree i.e. who retired before 01.01.2006 is to be brought corresponding to the revised pay scale as per 6th Central Pay Commission and then it has to be ensured that pension fixed is such that it is not lower than 50% of the minimum of the pay in the band and the grade pay thereon.”
It has been amply reasoned by the Punjab & Haryana High Court that Resolution dated 29.08.2008 is the core document and should be given effect without any addition/alternation.
3. Judgement dated 29.04.2013 in W.P.(C) 1535/2012 delivered by a Division Bench of Delhi High Court. The above judgement of Punjab & Haryana High Court has been adopted by Delhi High Court. Also, the above mentioned judgement of Principal Bench of CAT has been upheld by Delhi High Court vide Para 9 of its judgement. This judgement has since been upheld by H’ble Supreme Court.
It can be seen from the above that Resolution Item No. 12 dated 29.08.2008 has not been implemented in letter and spirit by the functionaries of the Govt. At the time of implementation, a condition of pro-rata reduction of ‘Minimum Assured Pension’ for Past Pensioners having less than 33 years’ service has wrongly been added. As a result, pre-2006 Armed Forces Pensioners with less than 33years service are not getting ‘minimum assured pension’ as decided by the Govt. Now, as remarked by Punjab & Haryana High Court vide Para 26 of its judgement:
“A Simple solution is to give effect to the resolution dated 29.09.2008 whereby recommendations of 6 CPC were accepted.”
by the kind courtesy of REPORT MY SIGNAL