Pramod Kumar Shrivastava vs Union Of India & Anr.

By Mallika Arya, AM:-

Through this Original Application applicant is seeking revision/recalculation of D.C.R.G., Leave encashment by taking into account DA @ 12% instead of 9% as on 01.01.2008 and to pay the difference amount of DCRG, leave encashment etc. to him.

The brief facts of the case are that the applicant while working on the post of Sr. Audit officer, Gwalior, superannuated on 31.12.2007 (A/N) i.e. one day before attaining the age of superannuation i.e. 60 years. His date of birth is 01.01.1948 and he should have retired on 01.01.2008. Respondents have computed DCRG and leave encashment taking into account DA @ 9% instead of 12% resulting in a short payment of DCRG, Leave encashment and other retiral benefits to him. Respondents have denied the said benefit to the applicant which have been given to the similarly situated employees. Applicant has submitted a representation dated 06.09.2013 which was rejected vide order dated 20.09.2017. Being aggrieved by the order, applicant has filed Original Application No.986/2018 before this Tribunal which was disposed vide order dated 23.10.2018. In compliance of said order, respondents have rejected the said representation vide order dated 10.01.2019. Hence this Original Application.

Respondents in their reply have submitted that applicant retired from service on 31.12.2007. As per provisions contained in FR 56(a), Rule 5(2) of CCS (Pension) Rules, 1972, stipulates that the date of retirement shall be treated as the last working day. As per Rule 9 and 69, pension other than family pension shall become payable from the date on which a government servant ceased to be borne on the establishment. Therefore the applicant was not in service on 01.01.2008 as he ceased to be in Government service w.e.f. 31.12.2007 AN. Hence the applicant is not entitled for grant of any pay and allowance from the 1^st day of succeeding month of his retirement. The applicant was not serving as Government servant on 01.01.2008. He started to draw pension and enhanced DA shall be granted in the form of dearness relief on pension.

Rejoinder has been filed by the applicant reiterating the averments made in the O.A.

Additional reply to the rejoinder has been filed by the respondents wherein they have submitted that as per first proviso to FR 56(a) applicant retired from service in the afternoon of the last date of the preceding month on attaining the age of 60 years. In the case of applicant, it was 31.12.2007. The case of C. Subbarao decided by Hon’ble High Court of Andhra Pradesh, has no application in the present case. The applicant cannot be said to be in active service, and hence he is not entitled to receive enhanced DA.

We have heard the applicant in person and the learned counsel for respondents. We have also perused the pleadings and documents annexed therewith. We have also gone through the written arguments filed by both the parties.

This is the second round of litigation. The point for determination is whether the applicant is entitled to re-computation of DCRG by taking into account Dearness Allowance @ 12% which became effective from 01.01.2008.

It is not in dispute that the applicant retired on superannuation on 31.12.2007. Fundamental Rule 56(a) provides for retirement in the afternoon of the last day of the month in which a Government servant attains the age of superannuation. Further, Rule 5(2) of the CCS (Pension) Rules, 1972 provides that the day on which a Government servant retires shall be treated as his last working day. Thus, for the purpose of determining the emoluments forming the basis of retirement gratuity etc., the relevant date is the date on which the applicant ceased to be in service which happens to be 31.12.2007 in case of the applicant.

We also take note of the fact that the pensionary benefits of a retired Government servant are decided on the basis of Pension Rules and Fundamental rules made by the Government of India. As per provision of Fundamental Rules 56 (a), every Government servant whose date of birth is the first of the month he shall be retired from service on the afternoon of the last day of the preceding month on attaining the age of sixty years. Rule 5 (2) of CCS (Pension) Rules, 1972 stipulates that the day on which a Government servant retires shall be treated as his last working day. Rule 83 of CCS (Pension) Rules, 1972 ibid further provides that Government servant ceases to be borne on the establishment of employer. Applicant retired on 31.12.2007 and he was not in service on 01.01.2008. In view of this factual position, applicant is not entitled for any pay & allowances on 1^st day of succeeding month. Further the respondents in their impugned order have given a detailed justification as to why the DA which became due on the next day of the succeeding month cannot be included as emoluments for calculation of gratuity one day before. The enhanced DA granted to an employee who becomes a pensioner after the midnight is in the form of Dearness Relief on Pension. Further the respondents in their reply have also stated that the Hon’ble High Court of Andhra Pradesh in the case of S. Subba Rao has held that “a person who retires on the last working day would not be entitled for any increment falling due on the next day and payable next day thereafter”. By this analogy the respondents have argued that the enhanced DA which became due from the next date of retirement of an employee cannot be treated as an emolument one day before. In light the detailed orders passed by the respondents, we do not find any reasons to interfere with the same.

In view of the above, this Original Application is dismissed on merits. No order as to costs.