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Judgment
The short question that arises for consideration is whether a person on account of compulsory retirement from service, has to loose his pension to any extent, basing on the instructions then in force. The applicant was not granted maximum pension of 50% of the basic salary drawn by him at the time of his compulsory retirement. Citing similarly placed cases of employees considered in Annexures A-4 and A-5 judgments of the Hon'ble High Court, he made a representation, which was ignored by the respondents, which prompted him to approach this Tribunal seeking to quash Annexure A-3 communication, especially, the observation that:
'These orders would not be applicable for the purpose of revision of pension of those pensioners who were drawing compulsory retirement pension under Rule 40 of the CCS (Pension) Rules or compassionate allowance under Rule 41 of the CCS (Pension) Rules. The pensioners in these categories would continue to be entitled to revised pension in accordance with the instructions contained in this Department's O.M No.38/37/2016-P&PW(A)(ii) dated 4.8.2016. '
Heard the learned counsel for the applicant and also the learned Standing Counsel for the respondents.
Admittedly, the applicant had retired from service through a process of compulsory retirement on 17.5.1994 after putting in a qualifying service of 27 years 8 months and 25 days. As per the instructions stood at that time, he was not granted pension on par with other pensioners. Similarly placed aggrieved persons had moved this Tribunal which ultimately reached the High Court. A Division Bench of the Hon'ble High Court in Annexure A-5 judgment dated 7.1.2016 held, basing on Rule 40 of the CCS (Pension) Rules, that persons retired compulsorily and others cannot be differentiated in the absence of consultation with the Union Public Service Commission. Thus, the reduction in pension made with respect to the respondent in O.P(CAT) 2/2016 was found illegal. Annexure A-5 judgment has been adopted by the Hon'ble High Court for Annexure A-4 and held that the Government did not make any distinction between ordinary pensioners and persons retired compulsorily.
When the representation was made by the applicant before the respondents, that was dismissed by Annexure A-3 O.M inter-alia stating that the judgments are not applicable to the applicant.
Today, when taken up for final hearing, learned counsel for the applicant has produced a copy of the O.M No. 38/46/2017-P&PW(A)(4879) dated 14.6.2022 wherein it has been specifically stated as follow:
“7.Accordingly, the clarifications/instructions contained in this Department's OMs No.45/86/97-P&PW(A)pt.V dated 25.03.2004, No.38/37/08-P&PW(A) dated 22.07.2011 and para 11 of OM No.38/37/2016-P&PW(A) dated 12.5.2017 stand withdrawn. 8. All Ministries/Departments are requested to revise the pension/family pension w.e.f. 01.01.1996, 01.01.2006 and 01.01.2016 (as may be applicable) in respect of the pensioners who were sanctioned compulsory retirement pension or compassionate allowance accordingly. ”
That means, any controversy touching the field has come to an end. Distinction that was maintained between the ordinary pensioners and pensioners who retired compulsorily stands removed by the O.M dated 14.6.2022 and the applicant is entitled to succeed.
The learned counsel for the applicant submitted that even though Union of India is a party to Annexures A-4 and A-5 Original Petitions, it is unfortunate that the respondent has taken an indifferent stand in Annexure A-9 communication. Therefore, he pressed for imposing atleast token cost. Learned Standing Counsel has opposed the contention. According to him, even though Union of India is a common party, different Ministries were being represented and the findings therein cannot be taken notice by the respondents. Therefore, he said that the applicant is not entitled to get cost.
After hearing counsel on both sides, I am not convinced that the case warrants award of cost. There shall be no order as to costs.
The Original Application is allowed to the extent of quashing paragraph 11 of Annexure A-3 O.M No.38/37/2016-P&PW(A) dated 12.5.2017. Resultant benefits shall be granted to the applicant at the earliest.
List of Annexures
Annexure A1 - A true copy of the VRS application dated 7.10.2013
Annexure A2 series: A true copy of the treatment for the ill health in the A.P Varkey Mission Hospital Ernakulam since 28.4.2012 to 24.5.2012
Annexure A3: A true copy of the communication dated 21.11.2013 issued by the Chief General Manager of the company
Annexure A4: A true copy of the account slip as on 31.3.2015 issued by the 2 respondent dated 25.6.2015
Annexure A5: The true copy of the lawyers notice dated 27.7.2017
Annexure A6: True copy of judgment dated 2.11.2017 by Hon'ble High Court of Judicature of Kerala at Ernakulam in WP(C) No.35017 of 2017.