M.L. Swarnakar vs Chairman-Cum-Managing Director, BSNL & Ors.

By Mallika Arya, AM.-

The applicant is aggrieved by improper pay of fixation at the time of his superannuation due to which he is getting less pension and has also received less retiral dues.

The applicant has sought for the following reliefs in this Original Application:

Brief facts of the case, as stated in the Original Application, are that the applicant was initially appointed as Telecom Accounts Clerk in the Department of Telecommunication (DoT). He was subsequently promoted as Junior Accountant and thereafter as Senior Accountant. While working as Senior Accountant substantively, the applicant was promoted to the post of Junior Accounts Officer on officiating basis from 27.09.2002 and continued as such till his retirement on 30.04.2012. On implementation of revision of IDA pay scales in BSNL w.e.f.01.01.2007, the applicant’s pay was fixed in the revised pay scale from 01.01.2007 onwards. He was again promoted as JAO (officiating) w.e.f.29.12.2009 vide order dated 29.03.2010 (Annexure A-2).

The respondent No.1 in their reply/additional reply has stated that the applicant was holding the post of Senior Accountant substantively. He was working as officiating JAO on temporary basis and was never promoted to the post of JAO on permanent basis. Therefore, he is not entitled for the pay of JAO as per rules. The applicant was getting the pay of JAO on officiating basis. Therefore, revised pay fixation was done as per FR22(I)(a)(i) read with FR-35 from 01.01.1996 till the date of retirement of the applicant vide order dated 13.06.2022.

Respondent No.3 in their reply has stated that the applicant was given NEPP w.e.f.22.02.2012 and thereafter he was again promoted to the post of Junior Accounts Officer on officiating basis. The respondent No.4 is the competent authority to forward complete documents to the respondent No.3 but they failed to send revised pension sanction and in absence of the same, pension of the applicant could not be authorized. The representation of the applicant was received in the office. In response, GMTD, BSNL, Gwalior was requested to send the revised pension order vide communication dated 08.05.2018 (Annexure R-2) followed by reminder dated 05.10.2018 (Annexure R-3). However, no response was received.

Heard learned counsel for the parties and perused the pleadings and the documents available on record.

It is not in dispute that the applicant was promoted to the post of JAO (officiating) for 179 days w.e.f.27.09.2002. He retired from the post of JAO (officiating) on 30.04.2012. The post of JAO was held by the applicant continuously for about 10 years except 2/3 days break on completion of every spell, as is evident from order dated 29.03.2010 (Annexure A-2). The applicant has challenged the action of the respondents in not determining his pension by taking into account the last pay drawn by him in the post of JAO to which he had been promoted in an officiating capacity with effect from 27.09.2002, and the post which he continued to hold till his retirement on 30.04.2012. The grievance of the applicant is that, having continuously drawn the pay attached to the post of JAO for nearly ten years immediately preceeding his retirement, such pay ought to have been treated as his Central Administrative Tribunal^{‘pensionable emoluments’ under Rule 33 of the CCS (Pension) Rules, 1972.}

Rule 33 of the CCS (Pension) Rules, 1972 defines “emoluments” as the basic pay as defined in Rule 9(21)(a)(i) of the Fundamental Rules which a Government servant was receiving immediately before his retirement or on the date of his death. Rule 9(21)(a)(i) of the Fundamental Rules, in turn, defines “pay” to mean, inter alia, the amount drawn monthly by a Government servant as the pay, other than special pay or pay granted in view of personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity. Thus, the statutory provisions itself make it clear that the pay attached to the post held in an officiating capacity is not excluded merely because the appointment is on ‘officiating’ basis. More importantly, the applicant's case is not one where the officiating appointment was for a few months or that it was immediately preceeding his retirement. The applicant was promoted as JAO in an officiating capacity on 27.09.2002 and continued to draw the pay of the said post continuously til 30.04.2012, i.e. for more than nine years and seven months. Therefore, if the appointment was duly authorised and the applicant was actually paid the sanctioned pay of JAO throughout this period, there appears to be no statutory basis for excluding such basic pay from the Central Administrative Tribunal^{expression “emoluments” merely on the ground that the appointment was} on ‘officiating’ basis. The case of the applicant also finds support from the letter dated 07.01.2015 (Annexure A-25) issued by the Accounts Office, wherein it has been stated as follows, “after retirement official cannot be reverted in his basic cadre, because the official has already performed his duty on officiating post and as per pension rule pension is related to pay/salary drawn by the employee on the last working day or 10 month average emoluments, whichever is beneficial and length of qualifying service and not on the post held by him at the time of retirement.”

Counsel for the respondents has placed reliance on a decision of coordinate Bench of this Tribunal (at Chennai) in OA 839/2014 dated 10.10.2018. He has stated that a similar controversy has been decided by the Chennai Bench. However, on perusal of the order passed by the Chennai Bench, it is evident that the case of the applicant therein seeking calculation of pension on the basis of his last pay and average of emoluments which he had received during the period he was working on officiating basis, was rejected on the ground that his pay cannot be considered as emoluments defined in Rule 33 of CCS (Pension) Rules read with Rule 9(22) of FR Central Administrative Tribunal^{due to his being inherently unqualified for the same. It is not the case of} the respondents that the applicant was not qualified to hold the post of JAO. Thus, the facts of case relied upon by respondents’ counsel are not applicable to the facts and circumstances of the present case.

In the case of Govt. of A.P. and others vs. Syed Yousuddin Ahmed, (1997) 7 SCC 24, relied upon by counsel for the applicants, the issue was with respect to take into account the “incentive award”, as a part of emoluments, while calculating the pension. The Hon’ble Supreme Court held that the “special pay” or “personal pay” would not form part of emoluments under Rule 31 of the Pension Rules. However, in the present case, the question requiring consideration is whether the pay “actually” drawn by the applicant in an officiating post of JAO can be treated as “emoluments” for determining his pension. Rule 33 of the Pension Rules explicitly provides that the pay attached to a post held is required to be included while calculating the pension. It does not distinguish whether the post is held on a regular or officiating basis.

In view of the foregoing discussion, the orders impugned are quashed and set aside. The respondents are directed to re-determine applicant’s pension by taking into account the pay of the applicant drawn as JAO (officiating) as ‘pensionable emoluments’ in accordance with Rule 33 of the CCS (Pension) Rules, 1972. The consequential arrears shall thereafter be worked out and released to the applicant within a period of 90 days from the date of receipt of the copy of this order.

Accordingly, this Original Application is allowed. No order as to costs.