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Judgment
Heard Mr. A. K. Pal, learned counsel appearing for the petitioner as well as Mr. D. Bhattacharya, learned GA appearing for the respondents No.1 to 4. None appears for the respondent No.5 even though the respondent No.5 has submitted the reply in response to the averments in the writ petition.
The facts are mostly admitted save and except the fact that the petitioner is entitled to get a higher pension in terms of the Government of India Office Memorandum No.38/37/08-P&PW(A) dated 06.04.2016, Annexure-D to the writ petition.
The petitioner was after his discharge from the Army reemployed by the respondent No.2 as Naik Operator in 8th Bn., Tripura State Rifles (IR-III). It is not in dispute that the petitioner's name has been struck off from the roll as he has retired on 31.08.2012 (afternoon).
The petitioner's pension has been fixed at Rs.2865/- per month in terms of Tripura State Civil Services (Revised Pension) Rules, 2009. After scrutiny by the office of the Accountant General, Tripura, the pension payment order has been issued in favour of the petitioner. The petitioner did not accept that quantum of pension and claimed by several representations that he should be provided with 50% of the salary last drawn on 31st of August, 2018. In support of his contention, he has relied on the office memorandum dated 06.04.2016, Annexure-D to the writ petition, where it has been provided [in para 4.2 of the department's OM of even number dated 01.09.2008 relating to revision of pension of the pensioners w.e.f. 01.01.2006], that the revised pension w.e.f. 01.01.2006, in no case, shall be lower than 50% of the sum of the minimum of pay in the pay band and the grade pay thereon.
Mr. Pal, learned counsel has contended that despite representations being filed, the respondent did not act in accordance with the provisions made in the said office memorandum dated 06.04.2016. The respondents No.1-4 and the respondent No.5 had filed their reply separately. Even the Commandant of 8th BN. TSR, IR-III by his communication dated 31.08.2018 has recommended the enhancement of pension of the petitioner to the extent of 50% of the basic pay. This recommendation could be gathered from the communication dated 31.08.2018, Annexure-F to the writ petition. But no positive yield has surfaced. According to the Commandant, 8th BN., TSR (IR-III) the petitioner is entitled to get the pension of Rs.5745 in lieu of Rs.2298/-. The respondents No.1-4 have in their reply quite categorically stated that the petitioner has retired from the Government service w.e.f. 01.09.2012 after rendering 11 years 3 months 10 days from the pensionable establishment and his pension was proposed to be fixed at Rs.2865/- per month in terms of the TSCS (Revised Pension) Rules, 2009. It has been further asserted in the reply that there is no provision to propose his pension at 50% of his basic pay. The petitioner has claimed under the provision of Rule 05 of TSCS (Revised Pension) Rules, 2009, full pension i.e. 50% of the basic pay. If the service tenure is less than 25 years, as in the case of Sri Dwijadas Chakraborty, the petitioner, who has rendered 11 years 3 months in the TSR Organisation, cannot get the full benefit of pension.
Mr. Bhattacharya, learned GA appearing for the respondents has clearly submitted that the petitioner is not entitled to get the higher pension. In this regard, Mr. Bhattacharya, learned GA has referred to the following passage from the reply filed by the respondent No.5.
"Regarding OM NO.38/37/08-P&PW(A) dated 06.04.2016 (annexed as annexure D‟ of the writ petition) issued by the Govt. of India, Ministry of Personnel, PG & Pensions, Department of Pension and Pensioner Welfare provides that revision of pension of Pre-2006 Pensioners-delinking of revised Pension from Qualifying Service of 33 years and this is applicable only to the Central Govt. Pensioners those were retired from Central Govt. Office/Department prior to 01-01-2006. On the other hand, the writ Petitioner is a Tripura State Govt. Pensioner and retired from Govt. Service on 31-08-2012 i.e., after 01-01-2006. So, the claim of the writ petitioner with reference to Office Memorandum dated 06.04.2016 is irrelevant. Further no such intimation/ clarification/notification has so far been received by the office of the Respondent No.5 from the Finance Department, Govt. of Tripura to the effect that the instructions as embodied in the said O.M. is also applicable in respect of Tripura Govt. Pensioners. This is why the office of the Respondent No.5 is not in a position to implement the said O.M. suo motu."
It has been further asserted by the respondent No.5 that the office of the respondent No.5 has authorized the superannuation pension @2865/- per month w.e.f. 01.09.2012 in favour of the writ petitioner vide PPO No.Pen-3/Sup/PPO/ST/111302339 dated 21.06.2013 on the basis of the calculation made as per provisions of Rule 49(2)(b) of the CCS (Pension) Rules, 1972 as adopted by the Government of Tripura. It may be mentioned here that 25 years of completed qualifying service is required to get pension @50% of the last pay in terms of TSCS (Revision of Pension) Rules, 2009. But in the instant case the petitioner had rendered 11 years 3 months 10 days only as the qualifying service. The petitioner has not filed any rejoinder in response to those averments.
Mr. A. K. Pal, learned counsel appearing for the petitioner has quite emphatically submitted that the petitioner will get 50% of the basic pay in terms of Government of India office memorandum dated 06.04.2016, Annexure D to the writ petition. Since the petitioner did not complete the required qualifying service for getting the full pension, the petitioner cannot claim as a matter of right that the benefit of the office memorandum dated 06.04.2016, Annexure-D to the writ petition, would be applicable to his case. In this regard, it would be appropriate to refer to Rule 49(2) of the Central Civil Services (Pension) Rules, 1972 as adopted in the State of Tripura. The said rules provides that in the case of a Government servant retiring in accordance with the provisions of these rules after completing the qualifying service of not less than ten years, the amount of pension shall be calculated at fifty per cent of emoluments or average emoluments, whichever is more beneficial to him, subject to a minimum of three thousand and five thousand rupees per mensem and a maximum of forty-five thousand rupees per mensem and under Rule (2-A) which has been incorporated on 08.06.2011. It has been further provided that in addition to pension admissible in accordance with Sub Rule 2 after completion of 80 years of age or above the addition of pension shall be payable to the retired Government servant in the following manner:
Age of pensioner
Additional pension
From 80 years to less than 85 years
From 85 years to less than 90 years
From 90 years to less than 95 years
From 95 years to less than 100 years
100 years or more
20% of basic pension
30% of basic pension
40% of basic pension
50% of basic pension
100% of basic pension
In this writ petition we are not concerned with the Rule 2-A inasmuch as the controversy is totally confined to whether by virtue of the office memorandum dated 06.04.2016 the petitioner would be entitled to 50% of the basic pay on 31.08.2012 in terms of the office memorandum dated 16.04.2016. From a bare reading of the said office memorandum it appears very clearly that this memorandum is only applicable to those pensioners who had retired from the service prior to 01.01.2006, but the petitioner has indisputably retired on 31.08.2012 and hence the said circular cannot give leverage to the petitioner's contention. Having observed thus, this writ petition stands dismissed. However, the respondents shall release the prorata pension to which the petitioner is eligible in terms of Rule 49 of the Central Civil Services (Pension) Rules, 1972.
Mr. Pal, learned counsel appearing for the petitioner has submitted that the petitioner has not yet received the pension payment order as stated in the reply filed by the respondent No.5. Such pension payment order shall be issued by the respondent No.5 within two months from the date when they will receive a copy of this order from the petitioner.
No order as to costs.