Jhinnoo Ram vs Union Of India & Ors.

The present O.A has been filed by the applicant under section 19 of the Administrative Tribunal Act, 1985 seeking following reliefs:-

The brief facts of the case are as follows:-The applicant was working as a Technician in the Electrical Department, DRM Office, NCR, Agra. His date of birth is 01.01.1956 and he was retired from service on attaining the age of superannuation on the afternoon of 31.12.2015. The grievance of the applicant is that his pension and other retiral benefits have been fixed by treating him as a pre-01.01.2016 retiree but he has been denied the benefits arising from the recommendations of the 7th Central Pay Commission, which were made applicable w.e.f. 01.01.2016. The applicant submitted a representation through the grievance portal, relying upon the judgment dated 17.04.2018 passed by the CAT, Principal Bench, New Delhi in OA No. 571/2017, contending that his case was covered by the said judgment. However, the respondents rejected his request vide letter dated 25.04.2024, stating that the judgment relied upon by him was applicable only to the person concerned and could not be extended to the applicant. The applicant has also been issued Pension Payment Order No. 20157320400686, wherein his pension has been fixed on the basis of the 6^th Central Pay Commission by treating him as a pre-2016 retiree. The applicant contends that since his date of birth is 01.01.1956, in view of the law laid down by the Hon’ble Supreme Court in S. Banerjee Vs. Union of India [AIR 1990 SC 295], he is deemed to have retired from service on 01.01.2016. Therefore, according to the applicant, he is entitled to fixation of his pension and other pensionary benefits in accordance with the recommendations of the 7^th Central Pay Commission, as implemented by the Government w.e.f. 01.01.2016. Being aggrieved by the denial of the said benefits, the applicant has filed the present Original Application.

Per contra, the respondents have filed its counter affidavit stating therein that applicant was working as Technician in the Electrical/TRD Department. His date of birth is 01.01.1956. As per the instructions contained in Master Circular No. 35, an employee whose date of birth falls on the first day of a month is to be retired on the afternoon of the last day of the preceding month. Accordingly, the applicant was rightly retired on 31.12.2015 on attaining the age of superannuation. The respondents have further stated that at the time of his retirement, the applicant was drawing basic pay of Rs.15,150/-under the 6^th Central Pay Commission. Since he had retired on 31.12.2015, the benefits of the 7^th Central Pay Commission could not be granted to him as a serving employee with effect from 01.01.2016. However, the respondents have clarified that the pension of the applicant was subsequently revised with effect from 01.01.2016 in accordance with the instructions issued by the Department of Pension and Pensioners’ Welfare vide Notification dated 04.08.2016 and Railway Board's RBE No. 97/2016 dated 10.08.2016. His revised Pension Payment Order was issued on 11.09.2017 and his pension was fixed at Rs.39,200/- under the 7^th Central Pay Commission. The respondents have also stated that the applicant was granted his annual increment on 01.07.2015, taking his basic pay to Rs.15,150/-. There was no further change in his last pay drawn on 31.12.2015 or 01.01.2016. His pension has already been revised on the basis of the last pay drawn by him. Thus, according to the respondents, although the applicant retired on 31.12.2015, his pensionary benefits have already been revised with effect from 01.01.2016 under the 7^th Central Pay Commission. Therefore, there is no further benefit due to the applicant and the claim made in the Original Application is not sustainable. Thus, OA is liable to be dismissed.

A rejoinder affidavit has also been filed by the applicant, in which the facts stated in the Original Application have been reiterated and the contents of the counter affidavit have been denied. Nothing new has been stated in the rejoinder affidavit.

I have heard Sri Rakesh Kumar Dixit, learned counsel for the applicant, and Sri Arvind Kumar, learned counsel for the respondents, and have perused the record.

Learned counsel for the applicant argued that the applicant's date of birth is admittedly 01.01.1956 and in view of the law laid down by the Hon’ble Supreme Court in S. Banerjee (supra), he is deemed to have continued in service up to 01.01.2016. It was submitted that merely because the applicant was formally retired on the afternoon of 31.12.2015, he cannot be denied the benefit of the revised pensionary benefits which became applicable from 01.01.2016. Learned counsel for the applicant further argued that the respondents have wrongly treated the applicant as a pre-01.01.2016 retiree for the purpose of fixation of his pension and other retiral benefits. According to him, the applicant is entitled to be treated at par with the employees who retired on or after 01.01.2016 and to get the benefits of the 7^th Central Pay Commission in accordance with the Government orders issued in this regard. It was also submitted that the judgment relied upon by the applicant in OA No. 571/2017, decided on 17.04.2018 by the Principal Bench of this Tribunal, supports his claim. The respondents could not reject the applicant's claim merely on the ground that the said judgment was passed in the case of another employee. Learned counsel for the applicant next argued that the principle laid down in the said judgment is applicable to the applicant also, as his date of birth and date of retirement are similarly situated. Thus, learned counsel for the applicant argued that the applicant is entitled to revision of his pension and consequential pensionary benefits by treating him as a retiree of 01.01.2016 and the impugned rejection of his claim is liable to be set aside.

In rebuttal, learned counsel for the respondents submitted that the applicant was rightly retired on the afternoon of 31.12.2015 in accordance with the applicable Railway instructions. Under Master Circular No. 35, where the date of birth of an employee falls on the first day of a month, the employee is required to retire on the last day of the preceding month. Therefore, the applicant cannot legally claim that he retired on 01.01.2016. Learned counsel for the respondents further submitted that the 7^th Central Pay Commission became applicable from 01.01.2016, whereas the applicant had already retired on 31.12.2015. Therefore, he cannot claim the benefits available to employees who actually retired on or after 01.01.2016. The respondents have accordingly treated his retirement as being on 31.12.2015. It was, however, submitted that the applicant has already been given the benefit of revision of pension with effect from 01.01.2016 in terms of the instructions issued by the Department of Pension and Pensioners’ Welfare dated 04.08.2016 and Railway Board's RBE No. 97/2016 dated 10.08.2016. His revised PPO was issued on 11.09.2017 and his pension was fixed at Rs.39,200/- under the revised pension structure. Thus, learned counsel for the respondents submitted that the applicant's last pay drawn at the time of retirement was Rs.15,150/- and there was no change in his pay on 31.12.2015 or 01.01.2016. Therefore, the pension has already been revised on the basis of his last pay drawn and no further benefit remains payable to him. It was also submitted that the judgment relied upon by the applicant cannot automatically be applied to his case without examining the facts and the applicable Railway instructions. Since the applicant has already been granted revision of pension with effect from 01.01.2016, there is no further legal basis for granting the relief claimed in the Original Application. Learned counsel, therefore, submitted that the Original Application is devoid of merit and is liable to be dismissed.

I have considered the submissions of learned counsel for the parties and have perused the record.

The admitted facts are that the date of birth of the applicant is 01.01.1956 and he was retired from service on the afternoon of 31.12.2015 on attaining the age of superannuation. The respondents have relied upon Master Circular No. 35 of the Railway Board relating to retirement. Para 4 of the said Master Circular provides as under:

Thus, so far as the actual date of ending from service is concerned, the applicant was rightly relieved on the afternoon of 31.12.2015 in terms of the aforesaid Railway instructions. However, the question which arises for consideration is not merely the date on which the applicant physically relinquished charge but whether for the purpose of determination of his pensionary benefits consequent upon implementation of the 7^th Central Pay Commission, he can be denied the benefit applicable to pensioners retiring with effect from 01.01.2016.

In this regard, the applicant has relied upon the judgment of the Hon’ble Supreme Court in S. Banerjee (supra). The relevant observation of the Hon’ble Supreme Court, as reproduced and considered by the Principal Bench in OA No. 571/2017, is as under:-

The Hon’ble Supreme Court further held that the fact that the employee did not receive salary for the day on which he retired had no bearing on the question of the date of retirement.

It is true that the facts in S. Banerjee (supra) related to voluntary retirement and the respondents have sought to distinguish the said judgment on the ground that the applicant herein retired on superannuation. However, this very objection was considered by the Principal Bench of this Tribunal in G.C. Yadav Vs. Union of India & Ors., OA No. 571/2017, decided on 17.04.2018. In that case also, the applicant had retired on the afternoon of 31.12.2015 on attaining the age of superannuation and his date of birth was 01.01.1956. The respondents therein had taken the same stand that he was a pre-2016 pensioner and that S. Banerjee (supra) was not applicable to him.

After considering the rival submissions, the Principal Bench observed that the judgment in S. Banerjee (supra) had attained finality and held that persons whose date of birth is the first day of a month are to be treated as having retired from that date. The relevant portion of the judgment of G.C. Yadav (supra) is reproduced below:-

The facts of the present case are substantially similar to those considered by the Principal Bench in OA No. 571/2017. In the present case also, the applicant's date of birth is 01.01.1956 and he was retired on the afternoon of 31.12.2015 on attaining the age of superannuation. Therefore, the objection of the respondents that the judgment in OA No. 571/2017 relates to another employee and cannot be applied to the applicant cannot be accepted. The principle laid down therein is based upon the interpretation of the law declared by the Hon’ble Supreme Court in S. Banerjee (supra).

It is also relevant that the respondents themselves have revised the applicant's pension with effect from 01.01.2016 under the 7^th Central Pay Commission and have issued a revised PPO dated 11.09.2017. Thus, the respondents have already accepted that the revised pensionary structure is applicable to the applicant with effect from 01.01.2016. The dispute, therefore, is principally regarding the treatment of the applicant as a pensioner retiring on or after 01.01.2016 and the consequential fixation of his pensionary benefits.

In view of the aforesaid facts and the law laid down in S. Banerjee (supra) and followed by the Principal Bench in OA No. 571/2017 (supra), I am of of the considered view that the applicant cannot be denied the benefit of the 7^th Central Pay Commission merely on the ground that he was formally relieved on 31.12.2015. For the purpose of determination of his pensionary benefits, the applicant is required to be treated as having retired with effect from 01.01.2016.

Thus, the Original Application is allowed and the impugned order dated 25.04.2024, whereby the claim of the applicant was rejected only on the ground that the judgment in OA No. 571/2017 (supra) are quashed. The respondents are directed to reconsider and refix the pension and other pensionary/retiral benefits of the applicant by treating him as a retiree with effect from 01.01.2016, in accordance with the recommendations of the 7^th Central Pay Commission and the Government instructions applicable to pensioners retiring on or after 01.01.2016 if already not refix/revised. The respondents shall also calculate and pay the consequential arrears, after adjusting the amount already paid to the applicant. The aforesaid exercise shall be completed within a period of three months from the date of receipt of a certified copy of this order. It is made clear that the applicant shall not be entitled to salary or other service benefits for 01.01.2016 as if he had not actually worked on that day. The benefit granted herein is confined to determination and fixation of his pensionary/retiral benefits in accordance with the applicable 7^th Central Pay Commission provisions. There shall be no order as to costs. All pending Misc. Applications, if any, also stand disposed of.