IN THE HIGH COURT OF DELHI AT NEW DELHI EXTRAORDINARY WRIT JURISDICTION

W.P. (C) No. 1535 of 2012

IN THE MATTER OF : Union of India & Ors. … Petitioners.

Versus Central Government SAG & Ors. …. Respondents. A petition under Articles 226 & 227 of the Constitution of India for the issuance of a writ, order or direction in the nature of Certiorari or any other writ, direction or order for quashing and set-aside the order dated 01.11.2011 issued by Central Administration Tribunal in O.A.No. 0655/2010, O.A. No. 3079 of 2009, O.A. No. 0306 of 2010 and O.A. No. 0507 of 2010. MOST RESPECTFULLY SHOWETH : 1. The present writ petition is being filed against the order dated

01.11.2011 passed by Hon’ble Central Administrative Tribunal in O.A.

No. 0655/2010, O.A. No. 3079 of 2009, O.A. No. 0306 of 2010 and O.A.

No. 0507 of 2010.

Copy of the common order dated 01.11.2011 passed by Central

Administrative Tribunal in O.A. No. 0655/2010, O.A. No. 3079 of 2009,

O.A. No. 0306 of 2010 and O.A. No. 0507 of 2010 are annexed

herewith and marked as Annexure P-1.

2. Relevant facts leading to this Writ Petition are that the Government

has so far set up six Central Pay Commissions. These pay

commissions made separate recommendations for revision of

pension of the past pensioners without linking it with the pension

that would be admissible to a Government servant of the

corresponding level. The Sixth Central Pay Commission is no

exception to that principle.

3. On 24.01.2008 sixth central pay commission (hereinafter referred to

as on 6th Pay Commission) submitted its report to the Government of

India.

4. Amongst the various important features of 6th Pay Commission, one

of the important feature was introduction of concept of clubbing of

pay scales in pay bands called 1S, PB-1, PB-2, PB-3, and PB-4.

5. 6th Pay Commission had inter alia recommended for clubbing of pay

scales. Clubbing of scales may be noted from the following table :-

Sl. Pay Scale Pay band 1 S-1, S-2, S-2A and S-3 1-S (440-7440) 2 S-4, S-5, S-6, S-7 and S-8 PB-1 (4860-20200)

3 S-9, S-10, S-11, S-12, S-13, S-14 and S-15 PB-2 (8700-34800)

4 S-16, S-17, S-18, S-19, S-20, S-21, S-22, S-23, S-24, S-25, S-26 and S-27

PB-23 (15600-39100)

5 S-28, S-29, S-30, S-31 and S-32 PB-4 (39200-67000)

The apex scales S-33 and Scale S-34 were not part of any pay band,

and they were recommended to be given Rs.80,000/- (fixed) per

month and Rs.90,000/- (fixed) per month respectively.

6. In addition to the clubbing and merger of pay scales in the pay bands

as per the aforesaid table, 6th Pay Commission has recommended a

fixed grade pay for each of the pay scale which were later on

modified by the government of India vide resolution of 29.08.2008.

Though the petitioners have made relevant submissions about this

resolution dated 29.08.2008 in the paragraphs hereinafter, however,

for the sake of convenience, petitioner while giving the grade pay for

each scale as recommended by 6th Pay Commission as also giving

the modified grade pay decided by the government.

Sl Pay Scale

Grade Pay recommended by 6th Pay Commission.

Grade Pay decided by Government.

1 S-1 1300/- 1300/- 2 S-2 1400/- 1400/- 3 S-2A 1600/- 1600/- 4 S-3 1650/- 1650/- 5 S-4 1800/- 1800/- 6 S-5 1900/- 1900/- 7 S-6 2000/- 2000/- 8 S-7 2400/- 2400/- 9 S-8 2800/- 2800/- 10 S-9 4200/- 4200/- 11 S-10 4200/- 4200/- 12 S-11 4200/- 4200/- 13 S-12 4200/- 4200/- 14 S-13 4600/- 4600/- 15 S-14 4800/- 4800/- 16 S-15 5400/- 5400/- 17 S-16 5400/- 5400/- 18 S-17 5400/- 5400/-

19 S-18 6100/- 6600/- 20 S-19 6100/- 6600/- 21 S-20 6500/- 6600/- 22 S-21 6600/- 7600/- 23 S-22 7500/- 7600/- 24 S-23 7600/- 7600/- 25 S-24 7600/- 8700/- 26 S-25 8300/- 8700/- 27 S-26 8400/- 8900/- 28 S-27 8400/- 8900/- 29 S-28 9000/- 10000/- 30 S-29 9000/- 10000/- 31 S-30 11000/- 12000/-* 32 S-31 13000/- -NIL- ** 33 S-32 13000/- -NIL- **

* Vide Notification dated 16.07.2009 amending the CCS(RP)

Rules, 2008, pre-revised S-30 pay scale was given a separate pay

scale of Rs.67000-79000.

** While accepting the recommendations of the Pay Commission,

instead of including them in the Pay Band-4, Pertinently the Apex

scales S-33 and Scale S-34 were not part of any pay band, as they

were recommended to be given by 6th Pay Commission, fixed pay of

Rs.80,000/- per month and Rs.90,000/- per month respectively,

therefore, no grade pay was recommended by the Commission nor

any grade pay was decided by the Government for scale S-33 and S-

34.

7. After careful consideration of recommendation 6th Central Pay

Commission, Department of Expenditure, Ministry of Finance vide

resolution of 29.08.2008 accepted the recommendations of Sixth Pay

Commission subject to the modifications mentioned in the

resolution, Copy of the resolution dated 29.08.2008 of Department of

Expenditure is annexed hereto and marked as Annexure P-2.

8. Vide above resolution dated 29.08.2008 pay bands PB-1, Pb-2 and

PB-3 were improved and modified as under :-

Recommended by the Commission

Decision of the Government.

PB-1 Rs.4850-20200 PB-1 Rs.5200-20200 PB-2 Rs.6700-34800 PB-2 Rs. 9300-34800 PB-4 Rs. 39200-67000 PB-4 Rs.37400-67000

9. As pointed out hereinabove vide resolution of 29.08.2008 grade pay

for each of the pay scale (as recommended by 6th Pay Commission)

was also modified.

10. Importantly vide resolution dated 29.08.2008, Government of India

not only improved the pay bands and grade pay but also

modifications with respect to clubbing of scale in the pay bands,

accordingly.

(i) Pay scales S-24, S-26, S-26 and S-27 which were

recommended to be clubbed in the pay band PB-3 were kept

by government in PB-4. Therefore, pay scales from S-24 to S-

30 were kept in PB-4.

(ii) Pay scales S-31 and S-32 which were recommended to be

clubbed in PB-4 and were decided to be given different pay

scale namely HAG + scale.

11. As such, as per resolution dated 29.08.2008 of the Government of

India Pay band PB-4 comprised of Pay Scale S-24 to S-30.

12. On 29.08.2008 itself, Department of Expenditure, Ministry of Finance

issued, in view of acceptance of recommendation of 6th Pay

Commission, a notification dated 29.08.2008 being GSR 622 (E)

notifying thereby Central Civil Service (Revised Pay) Rules, 2008

(hereinafter referred to as revised pay rules) A copy of a notification

dated 29.08.2008 being GSR 622 (E) notifying thereby Central Civil

Service (Revised Pay) Rules, 2008 is annexed here to and marked as

Annexure P-3.

13. The revised pay rules were made effective from 01.01.2006. 14. Under Rule-3 of the revised pay rules pay in the pay band and grade

pay have been defined as under :-

“(5) “Pay in the pay band” means pay drawn in the running pay bands specified in Column 5 of the First Schedule.

(6) “grade pay” is the fixed amount corresponding to the pre-revised pay scales/posts.”

15. Section 1, Part-A of the first Schedule to the revised pay Rules

provides for revised pay bands and grade pay for posts carrying pay

scales (S-1) to (S-34) whereas Section II provide for “entry pay” in

the revised pay structure for direct recruits appointed on or after

01.01.2006.

16. Second schedule to the revised pay rules provided for a format in

which government servant were required to exercise their option so

as to enable them to continue to draw pay in the existing scale until

the date on which he earns his next or any subsequent increment.

17. Thereafter, office memorandum dated 30.08.2008 was issued,

Annexure 1 to the OM dated 30.08.2008 provide for fitment tables,

inter alia, providing for revised basic pay of the employees I service

as on 1.1.2006. It has been clearly stated in this memorandum that

detailed fixation tables for each stage in each of the pre-revised

scales have been worked out in the manner recommended by the 6th

Pay Commission and are enclosed as Annexure - ! of this OM. These

may be used for the purpose of fixation in the revised pay structure

as on 01.01.2006.

Pertinently, the fitment tables as provided in Annexure – 1 to

Memorandum dated 30.08.2008 are to be used exclusively for the

purpose of fixation in the revised pay structure as on 01.01.2006,

however, these tables are nothing to do with the calculation of

pension of retirees who were Government Servant before

01.01.2006. Despite this, Hon’ble CAT has directed for fixation of

revised pay of pre-2006 retirees by taking into consideration the

minimum basic revised pay of Government Servant on or after

01.01.2006. A copy of office Memorandum state 30.08.2008 being

F.No. 1/1/2008-1C of Ministry of Finance, Department of Expenditure

is annexed here to and marked as Annexure-P-4.

18. As per the said fitment table following is the position of the revised

pay of pre-revised scale (S-29) 18400-500-22400.

Pre-revised basic pay.

Revised Pay

Pay in the pay band

Grade Pay

Revised Basic Pay

18,400

44,700

10,000

54,700

18,900

46,050

10,000

56,050

19,400

46,050

10,000

56,050

19,900

47,440

10,000

57,440

20,400

47,440

10,000

57,440

20,900

48,870

10,000

58,870

21,400

48,870

10,000

58,870

21,900

50,340

10,000

60,340

22,400

51,850

10,000

61,850

22,900

53,410

10,000

63,410

23,400

55,020

10,000

65,020

23,900

56,680

10,000

66,680

Regarding revision of pension of past pensioners, the Government

made the following recommendations :

As 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 1/4/3004) and dearness pension (for other pensioners) respectively. The increase will be allowed by subsuming the effect of conversion of 50% dearness relief / dearness allowance as dearness pension/darkness 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 on1/1/2006. 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 that 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 (Para 5.1.47 of the Report).

The above recommendation of the Commission was accepted by the

Government vide aforesaid Resolution dated 29.08.2008 (marked as

Annexure P-2A) with the modification that fixation of pension shall

be based on a multiplication facts of 1.86 i.e. basic pension +

Dearness Pension (wherever applicable) + dearness relief of 24% as

on 1.1.2006, instead of 1.74.

19. Thereafter, office memorandum being F.No.1/1/2008-IC dated

30.08.2008 was issued by Department of Expenditure, inter alia,

requiring Government servant to exercise their option for withdrawal

of their pay in the revised pay structure in the format prescribed in

the second schedule to the rules.

20. After resolution of 29.08.2008 and notification of revised pay rules,

office memorandum (OM) being F.No. 38/37/08P&PW(A) dated

01.09.2008 was issued by Department of Pension and Pensioners

Welfare, Ministry of Personnel, Public Grievances and Pensions,

inter alia, for revision of pension of pre-2006 pensioners/family

pensioners etc. in consequent to implementation of Governments

decision on the recommendation of 6th Pay Commission. A copy of

office memorandum being F.No. 38/37/08P&PW(A) dated 01.09.2008

was issued by Department of Pension and Pensioners Welfare,

Ministry of Personnel, Public Grievances and Pensions is annexed

here to and marked as Annexure P-5.

21. The aforesaid office memorandum specifically states in Para-1 that

separate orders will be issued in respect of employees retired /died

on or after 01.01.2006 i.e. post 2006 pensioners as in terms of para-

2.1 of OM that the same is applicable to all pensioners / family

pensioners who were drawing pension / family pension on

01.01.2006 under the Central Civil Services (Pension) Rules 197, CCS

(Extra ordinary pension) Rules and the corresponding rules

applicable to Railway Pensioners and Pensioners of All India

Services including officers of Indian Civil Service Retired from

service on or after 01.01.1973. As such, OM dated 01.09.2008 was

made applicable to all pre-2006 pensioners, whose pensions were to

be revised in the manner specified in the memorandum.

22. Para-4.1 of the memorandum, inter-alia provided for mechanism to

calculate and arrive and consolidated pension / family pension w.e.f.

01.01.2006, with the following guarantee in para-4.2 of the

memorandum, which reads as under :-

“4,2 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.”

23. Thereafter a separate office memorandum F.No. 38/37/08P&PW(A)

dated 02.09.2008 was issued by Department of Pension and

Pensioners Welfare, Ministry of Personnel, Public Grievances and

Pensions for regulating the issue of payment of pension of post 2006

retirees i.e. Government servants who retire on or after 01.01.2006. A

copy of office memorandum being F.No. 38/37/08P&PW(A) dated

02.09.2008 was issued by Department of Pension and Pensioners

Welfare, Ministry of Personnel, Public Grievances and Pensions is

annexed herewith and marked as Annexure P-6.

24. Clarifying the memorandum dated 01.09.2008, another office

memorandum being OM F.No. F.No. 38/37/08P&PW(A)pt.1 dated

03.10.2008 was issued by Department of Pension and Pensioners

Welfare, Ministry of Personnel, Public Grievances and Pensions

whereby amongst the other clarifications, above paragraphs 4.2. of

office memorandum dated 01.09.2008 was also clarified. Relevant

extract of the clarificatory memorandum dated 03.10.2008 reads s

under:-

“The pension calculated at 50% of the minimum of pay in the pay ban 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.10,000/- p.m., his minimum guaranteed pension would be 50% of Rs.37,400 + Rs.10,000 (i.e. Rs.23,700/-) A statement indicating the minimum pension corresponding to each of the pre-2006 scales of pay is enclosed at Annexure.”

A copy of the office memorandum being OM F. F.No.

38/37/08P&PW(A)pt. dated 03.10.2008 issued by Department of

Pension and Pensioners Welfare, Ministry of Personnel, Public

Grievances and Pensions is annexed here to and marked as

Annexure P-7.

25. In furtherance of memorandum dated 03.10.2008 and in view of a

large number of representations received by Government of India

regarding the delay in payment of pension and arrears to the pre-

2006 pensioners / family pensioners, office memorandum being OM

F.No. 38/37/08P&PW(A)pt.1 dated 14.10.2008 was issued by

Department of Pension and Pensioners Welfare, Ministry of

Personnel, Public Grievances and Pensions, inter alia, to facilitate

payment of revised pension in terms of para 4.2. of the OM dated

01.09.2008 as clarified by OM dated 03.10.2008, and for this purposes

a table (being annexure-I to OM dated 14.10.2008) was provided and

column 8 of the table represented 50% of sum of minimum of pay

band + grade pay. A copy of memorandum being OM F.No.

38/37/08P&PW(A)pt.1 dated 14.10.2008 was issued by Department of

Pension and Pensioners Welfare, Ministry of Personnel, Public

Grievances and Pensions is annexed here to and marked as

Annexure P-8.

26. Being aggrieved with the aforesaid memorandums of Government of

India, representations were made by pre-2006 pensioners, inter alia,

claiming parity and equal treatment with those who retires after

01.10.2006 i.e. post 2006 pensioners.

27. At this stage it is relevant to point out, representation dated

21.11.2008 was made by respondent wherein respondent claimed

parity in the matter of grant of pension with post-2006 pensioners,

inter alia alleging that the Government of India accepted the parity of

pension vide para 4.2 of the office memorandum dated 01.09.2008,

however, while issuing clarification on para 4.2 vide memorandum

dated 03.10.2008 the concept of the parity was neglected by the

Government. Copy of representation dated 21.11.2008 is annexed

hereto and marked as Annexure P-9

28. Department of Pension and Pensioners Welfare, Ministry of

Personnel, Public Grievances and Pensions, disposing of

representations / references received by them, inter alia, alleging

that instructions with regard to pension of pre-2006 pensioners are

discriminatory and are not in conformity with the decision taken on

the recommendations of 6th Pay Commission, issued memorandum

being F.No. 38/37/08P&PW(A) dated 11.02.2009, inter alia, to the

effect that no change is required to be made in that respect. A copy

of memorandum being OM F.No. 38/37/08P&PW(A) dated 11.02.2009

was issued by Department of Pension and Pensioners Welfare,

Ministry of Personnel, Public Grievances and Pensions is annexed

hereto and marked as Annexure P-10.

29. Now coming to the bottom line controversy as agitated before

Hon’ble Central Administrative Tribunal and observation and finding

of Hon’ble CAT on the same, it is submitted that relying upon

judgments of Hon’ble Supreme Curt of India, mainly in the matter of

D.S. Nakara & Ors. Vs. Union of India (1983) 1 SCC 305 and Union of

India vs. S.P.S. Vains (2008) 9 SCC 125, resolution dated 29.08.2008

and article 14 of the Constitution of India and alleging that vide OM

dated 01.09.2008, 03.10.2008 and 14.10.2008 criteria and principals

for determining the pension has been given a complete go-by

original applications being OA No. 3079 of 2009, 306 of 2010, 507 of

2010, 655 of 2010 were fied by pre-2006 pensioners (who retired from

S-29 pre-revised scale of pay) before Hon’ble principal bench of CAT,

inter alia.

(i) Claiming parity in pension with post 01.01.2006 retirees.

(ii) praying for quashing of clarification memorandums dated

03.10.2008, 14.10.2008 and 11.02.2009.

(iii) Direction for their notional pay fixation and consequently

pension fixation should not be less than 50% of the sum of the

pay in the pay band and the grade pay thereon corresponding

the scale of pay from which they had retired.

Copy of 3079 of 2009, 306 of 2010, 507 of 2010, 655 of 2010 filed

before the CAT is annexed hereto and marked as Annexure P-11

(Colly).

30. Petitioners has filed their counter affidavit to each of the

aforesaid OA, inter alia, submitting therein that the orders /

clarifications issued by the Government for revision of provision for

calculation of pension re in consonance with the decision of the

Government on the recommendations of 6th Pay Commission and

that the Government had taken a policy decision to revise the

provisions for determination of pension and this policy decision is

not discriminatory. It was also submitted by the petitioners in their

counter affidavits that policy of the Government with regard to

payment of pension to pre-2006 and post-2006 retirees is legally

sound, hence do not call for any interference by Hon’ble CAT. A

copy each of the counter affidavit filed by the petitioners to 3079 of

2009, 306 of 2010, 507 of 2010, 655 of 2010 respectively is annexed

hereto and marked as Annexure P-12 (Colly).

31. The above OA were decided and disposed of by Hon’ble CAT vide

impugned order dated 01.11.2011 whereunder Hon’ble CAT though

held that

(i) It cannot be said that fixation of cut off date for the purpose of

extending retrial benefit is arbitrary and it is permissible for

the government to fix a cut off date for introducing any new

pension / retirement scheme or for discontinuing of any

existing scheme.

(ii) The challenge made by the applications based upon the

judgement in D.S. Nakara that they should be extended the

same pensionary benefits as that of post – 2006 retirees

cannot be accepted.

(iii) Pre-01.01.2006 and post 2006 retirees cannot be extended the

same pensionary benefits as on the basis of recommendations

of 6th Pay Commission to different schemes for pre-2006 and

post-2006 retirees have been issued and that applicants

(respondents before this Hon’ble Court) have not challenged

the validity of the OM dated 02.09.2008, therefore, pre-2006

retirees cannot claim benefit as par with posy 2006 retirees

who are governed by the separate set of scheme.

(iv) Judgement in the matter of SPS Vains was of no assistance to

the applicants which was rendered in different facts and

circumstances and relate to Army Personnel.

Yet nevertheless such finding, Hon’ble CAT by comparing the

pension of pre-01.01.2006 retirees and post 01.01.2006 retirees

quashed memorandum dated 03.10.2008, 14.10.2008 and 11.10.2009

and directed to re-fix the pension of all pre-2006 retirees based on

the resolution dated 29.08.2008 holding that OM dated 03.10.2008

substantially changed the modified parity / formula adopted by the

Central Government pursuant to the recommendations made by 6th

pay Commission and thus caused great prejudice to the applicant.

32. It is submitted that findings of Hon’ble CAT are self contradictory as

Hon’ble CAT on the one hand accepted that there was no

arbitrariness and discrimination on the part of the petitioners in

fixing cut-off dated as 01.01.2006 and that pre-2006 and post 2006

retirees are governed by separate schemes and memorandums and

that pre 2006 retirees cannot claim benefit at par with post 2006, on

the other hand Hon’ble CAT by comparing the pension of pre 2006

retirees who retired in December 2005 with the pension of post 2006

retiree who retired in January 2006, quashed memorandums dated

03.10.2008, 14.10.2008 and 11.10.2009 without appreciating that vide

these memorandums principles of pension as mentioned in

resolution dated 29.09.2008 were not changed at all.

33. It is submitted that impugned order is against principle of law and

the same is liable to be set aside, inter-alia, on the following

grounds:-

GROUNDS

A. For that Hon’ble CAT erred in not appreciating that memorandums

dated 03.10.2008, issued clarifying memorandum dated 01.09.2008

are in no way deviating from the decision of the government for

acceptance of recommendation of 6th Pay Commission under

Resolution dated 29.08.2008 nor do the same give a go-by to the

principle of modified parity. Therefore, while issuing memorandums

dated 03.10.2008 and 14.10.2008, modified parity / formula adopted

by Central Government pursuant to recommendation of 6th pay

commission was neither changed nor the same on the face of it go-o

to introduce or demonstrate any change or go-by to the principles of

modified parity accepted vide Resolution dated 29.08.2008.

B. For that Hon’ble CAT failed to appreciate that the following two

phrases (a) and (b) only explain the exact meaning of “That the

revised pension in no case shall be 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 petitioner had retired” for

the purpose of application without introducing any change.

(a) That the revised pension in no case, shall be 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

petitioner had retired.

(b) That the pension calculated at 50% of the minimum of the pay

in the pay band plus grade pay would be calculated (i) at the

minimum of the pay in the pay band (irrespective of pre-

revised scale of pay) plus the grade pay corresponding to the

pre-revised pay scale.

© For that Hon’ble CAT failed to appreciate that “minimum of the pay in

the pay band” refers to the starting point of the pay band, therefore,

pension of S-29 grade retirees (retired before 01.01.2006) was to be

calculated in the pay band of Rs.37400 – Rs.67000, by taking

Rs.37400 (starting point of pay band) as minimum pay for the

purpose of pension.

D. For that Hon’ble CAT failed to appreciate that when there was no

arbitrariness in fixing cut-off dated (as 01.01.2006) and issuing to

separate memorandums / schemes for pre-2006 and post-2006

retirees respectively, then how pension of pre-2006 retirees could be

directed for re-fixation, on erroneous comparison of pension amount

payable to retiree in December 2005 with the pension amount of

retiree of January 2006.

E. For that Hon’ble CAT failed to appreciate that when it found no

illegality and infirmity in the memorandum dated 01.09.2008, then it

was not justified to quash memorandums dated 03.10.2008 and

14.10.208 as these memorandums only clarified the meaning of

memorandum dated 01.09.008, for the sole purpose of practical

application dated calculation of pension of pre-2006 retirees.

F. For that Hon’ble CAT erred in not appreciating that fitment tables

(Annexure 1 to Memorandum dated 30.08.2008) were to be applied

for revising pay of Government servants who were in service as on

01.01.2006, therefore, pre-2006 retirees can not demand for re-

fixation of their pension on the basis of revised pay fitment tables in

general and in particular on the basis of minimum revised pay of

pre0revised scales.

G. For that Hon’ble CAT erred in not appreciating and further erred in

quashing memorandum dated 14.10.2008, Annexure 1 whereof

provides for table based on which pension of pre-2006 pensioners is

to be calculated and that the said table is in accordance with

decision of the Government in accepting the recommendations of 6th

Pay Commission vide Resolution dated 29.08.2008.

H. For that Hon’ble CAT failed to appreciate that improvement of pay

scale of S-29 category from 39200-67000+grade pay of Rs.9000/- with

minimum pay of Rs.43280/- to Rs.37400/- - Rs.67000/- with grade pay

Rs.10,000/- with minimum pay of Rs.44700/- was meant for existing

Government employees who were in service as on 01.01.2006 and

had nothing to do with the Government employees who retired

before 01.01.2006, therefore, no benefit could have been granted to

pre-2006 retirees on the ground that the Government did not intend

to reduce the pension of pre-2006 retirees while improving the pay

scale of S-29 grade.

I. For that Hon’ble CAT failed to appreciate that financial constraints

and implications are always vital and important factor in

interpretation of economic / fiscal policies of Government as paying

capacity of employer cannot be ignored in granting and denying

monetary benefits to employees including ex-employees.

J. For that Hon’ble CAT, on the on hand find two separate schemes of

pension respectively for pre-2006 and post-2006 retirees as good in

law and held that they are governed by their respective schemes, on

the other hand erred in comparing of pension of pre and post 2006

retirees and holding that pension of Rs.23700/- of pre-2006 retirees

(retired in December 2005) being less than the pension of Rs.27,350/-

of post 2006 retiree (retired in January 2006) has the principal of

modified parity.

K. For that Hon’ble CAT failed to appreciate that pre-2006 retirees and

post 2006 retirees are not similarly situated, therefore, there could

not be equality among unequal, as such pre-2006 retirees could not

claim the same benefit of pension as that of available to post-2006

retirees.

L. For that Hon’ble CAT though noticed that pre-2006 retirees before it,

had not challenged memorandum dated 02.09.2008 issued for

determining of pension of post-2006 retirees and memorandum

dated 01.09.2008 for pre-2006 retirees found to be valid and legal, yet

Hon’ble CAT comparing the pension of Post-2006 retirees and

pre=2006 retirees granted those benefit of pension to pre-2006

retirees which were not meant for them but for post 2006 retirees.

M. For that revised pay rules providing for revised pay were applicable

to Government employees as on 01.01.2006, therefore, by taking into

consideration and importing minimum revised pay of Government

employee as on 01.01.2006, no benefit of pension could be granted

to pre-2006 employees on the basis of minimum revised pay.

N. For that Hon’ble CAT failed to appreciate that though the

phraseologies used in the resolution dated 29th Autust, 2008, para 4.2

of the OM dated 1st September 2008 and the clarificatory OM dated

3rd October 2008 were not identical, in so far as the Government is

concerned, the intent when reference is drawn to minimum of the

pay in the pay band, was always to refer to the starting point of the

pay band i.e. the minimum of the pay band. The minimum of pay in

the pay band is the pay from which the pay band starts and not the

minimum of pay which a serving employee is entitled to in

accordance with the fitment table. As such the petitioners who were

not in service as on 01.01.2006 cannot claim replacement of pay on

the ground of modified parity at par with those who were in service it

has accrued to the latter only by virtue of their being in service in the

respective pay scales as on 01.01.2006. The contention of the

petitioners that their pension must be fixed at 50% of the minimum of

the pay in the pay band in accordance with the Fitment Tables for

serving employees cannot be conceded by the Government. The

fitment tables in Annexure 1 of Ministry of Finance (Department of

Expenditure)’s OM No. 1/1/2008-IC dated 30.08.2008 are of very

limited application. They are meant to only indicate the pay fixation

of serving employees as on 1.1.2006 who are moving over from the

5th CPC to 6th CPC Scales. These pay fitment tables are not relevant

even for subsequent drawals of increment and/or pay fixation on

promotion of serving employees. The contention of the petitioners

that their pension must be fixed with reference to the minimum of the

pay in the pay band as depicted by the pay fixation tables is,

accordingly, based on a completely incorrect understanding of the

principles of pay and pension fixation and is without merits.

O. For that in regard to the difference in pension of those who retired

from S-29 grade in December 2005, Hon’ble CAT failed to appreciate

that in comparison to an officer in the same or lower grade who

retired in January 2006, fixation of a cut-off date for the purpose of

extending retiral benefits is perfectly permissible and legitimate for

the Government. Pre-2006 and Post-1.1.2006 retirees cannot be

extended the same pensionary benefits as the Government of India

have, on the recommendations of the 6th CPC, issued two different

schemes for pre-2006 and post-2006 retirees. It is, therefore, not

correct to compare a retiree in December 2005 with a retiree in

January 2006, both of whom are governed by a separate scheme of

pensionary benefits.

P. For that Hon’ble CAT failed to appreciate that the 5th CPC had

enunciated the concept of ‘Modified Parity’ which has also been

adopted by the 6th CPC for revision/consolidation of pre-2006

pensioners. At the same time, with a view to de-layering the

Government, the 6th CPC also introduced, for the first time, the

concept of pay bands and grade pay. A number of pre-revised

scales of pay, which were in operation before 6th Central Pay

Commission, have, accordingly, been merged into running pay

bands. The present disparities that have been referred to by the CAT

are mainly on account of this fact.

Q. For that Hon’ble CAT failed to appreciate that the Government has

allowed a uniform fitment benefit of 40% of basic pension in all

cases. Over and above this, if the pension, after consolidation falls

short of 50% of the minimum of the pay in pay band + grade pay,

stepping up is done. It is logical that when a number of pre-revised

pay scales are merged into a single pay band it may happen that

those individuals who are in the higher pay scales do not get

benefits in the same ratio and proportion as those who are in the

lower pay scales. The pre-revised scales of S-24 to S-29 ranging

from Rs.14330-18300 and going upto Rs.18400 – 22400 have all been

merged in PB-4 separated only by different grade pays of Rs.8700,

Rs.8900 and Rs.10000. Accordingly, the pension of pre-2006 retiree

in the pre-revised pay scale of S-24 shall be worked out at 50% of the

minimum of the pay in the pay band corresponding to the pre-

revised scale of pay along with grade pay thereon (in terms of OM

dated 1st September 2008) and this shall be 50% of Rs.37400+8700

which is equal to Rs.23050. In so far as the pre-revised pay scale of

S-29 is concerned, by the same formula, the revised pension shall

work out to Rs.23700. It would be seen that there is a difference of

only RS.650 (Rs.23700 – Rs.23050) in the pension of pre-2006 retiree

at the minimum of the pre-revised S-24 scale i.e. Rs.14300 and the

maximum of the pre-revised S-29 scale which is Rs.22400. This is,

not because of any illegal, arbitrary or capricious move by the

Government but merely on account of the bundling of several pre-

revised pay scales into one pay band. In case succeeding Pay

Commissions continue with the concept of running pay bands, the

individual discrepancies or aberrations currently arising, because of

first time application, shall no loner arise.

R. For that Hon’ble CAT failed to appreciate that the Pay Commissions

are expert bodies and their recommendations are to be accepted as

part of an overall package. It, therefore, cannot be anybody’s

contention that recommendations which are manifestly to the

advantage of pensioners shall be wholeheartedly accepted while

those which may not yield the same degree of relative benefits are

liable to challenged and struck down in Court of Law.

S. For that Hon’ble CAT failed to appreciate that in a catena of

judgements, various Courts, including the Apex Court, have held that

it is the prerogative of the executive authorities to fix cut-off dates

and to determine issues of pay and pension fixation. The executive

takes these decisions based on a variety of considerations including

financial, administrative and other constraints. The Courts do not

generally interfere in this regard unless the principles adopted are

patently arbitrary or malafide. This is not the case in the present

instance.

T. For that Hon’ble CAT failed to appreciate that granting of benefit of

pay and pension is a matter of policy and the Government is entitled

to take into account various factors including financial implications

and availability of resources to decide what benefit or how much

benefit should be granted and from which particular time. Such a

policy is not open to judicial review unless the same is arbitrary and

against the public policy with the object to be achieved.

U. For that Hon’ble CAT failed to appreciate that the wisdom in a policy

decision of the Government as such is not justiciable unless such

policy decision is wholly capricious, arbitrary and whimsical thereby

offending the rule of law as enshrined in Article 14 of the

Constitution or such policy decision violates any statutory provision

or the provisions of the Constitution.

Save as aforesaid, the Court need not embark on unchartered area of

public policy.

V. For that findings of Hon’ble CAT are self contradictory, therefore,

liable to be set aside.

W. For that findings Hon’ble CAT failed in the impugned order are

contrary to material on record.

X. For that impugned order of Hon’ble CAT is not tenable nor is the

same in accordance with the law.

38. The impugned order is liable to be set-aside as the same is

mechanical, perverse and contrary to material on record.

39. It is submitted that petitioners have not filed any other petition or

application against the impugned common order dated 01.11.2011

passed by Central Administrative Tribunal in O.A.No.0655/2010,

O.A.No.3079 of 2009, O.A. No. 0306 of 2010 and O.A. No.0507 of 2010

before any other court, authority, tribunal and Hon’ble Supreme

Court.

PRAYER

In view of the above, it is submitted that this Hon’ble Court may

graciously be pleased to :

(a) pass appropriate writ, directions or order in the nature of

certiorari or any other writ, direction on order dated 01.11.2011

passed by Hon’ble Central Administrative Tribunal, principal

Bench in O.A.No.0655/2010, O.A.No.3079 of 2009, O.A. No.

0306 of 2010 and O.A. No.0507 of 2010;

(b) Such other further direction which this Hon’ble Court may

deem fit and proper in the facts of the case.

PETITIONER THROUGH:

RUCHIR MISHRA, ADVOCATE,

H-1337, LGF, LAGPAT NAGAR, NEW DELHI – 110024

New Delhi Date : /02/2012