Sant Singh 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 that the applicant was initially appointed to the post of Guard in the Railway Department in the pay scale of Rs. 80-130. He was subsequently retired as Mail Express Guard on 30.09.1992 in the pay scale of Rs. 1400-2600, and his basic pay was fixed at Rs. 2360/-. The applicant states that his running allowance was correctly taken into account while fixing his pensionary benefits under the 4^th , 5^th and 6^th Pay Commissions. However, after implementation of the 7^th Pay Commission, the 55% running allowance was not taken into account in the notional pay column in the applicant's PPO. Further, his category was wrongly shown as “General” with effect from 01.01.2016. The applicant claims that the aforesaid entries in his PPO are incorrect and have resulted in the incorrect fixation of his pensionary benefits. Aggrieved by the same, the applicant submitted a representation dated 26.06.2023 before the Divisional Personnel Officer, North Central Railway, Allahabad, requesting correction of the aforesaid discrepancies and consequential revision of his pensionary benefits. However, his representation has not been considered or decided till date. Hence, the present Original Application has been filed seeking appropriate relief.

Per contra, the respondents have filed their counter affidavit contending therein that applicant was retired as Mail Express Guard on 30.09.1992 in the pay scale of Rs. 1400-2600. His pension was correctly fixed by taking into account the applicable pay element of the running staff. It is relevant to mention that the applicant’s pension was revised and correctly fixed vide PPO No. 19927320200063 dated 18.11.2022. In the said PPO, the applicant was shown under the staff category as “Safety Category Staff” and his notional pay was fixed at Rs. 2360/- in the scale of Rs. 1400-2600 at the time of his retirement. The respondents have further stated that the pension of the applicant was fixed in accordance with Railway Board’s RBE No. 13/2018 dated 24.01.2018. Para-4 of the said RBE provides that a retired running staff is entitled to Dearness Relief only on the pension drawn, which has already been fixed by taking into account 55% of the pay element. The pay element is not to be reckoned again for the purpose of Dearness Relief. Thus, according to the respondents, the applicant’s pension has been correctly fixed in accordance with the applicable Railway Board instructions. There is no illegality or infirmity in the fixation of his pension, and the grievance raised by the applicant is therefore without merit.

Rejoinder affidavit has also been filed in which the applicant has reiterated the same facts as stated in the OA and denied the contents of the counter affidavit. Nothing new has been mentioned in the rejoinder affidavit.

I have heard Sri Ravi Sharma, learned counsel for the applicants and Shri Shivaji Singh, learned counsel for the respondents and perused the record.

Submission of learned counsel for the applicant is that prior to implementation of the 7^th Pay Commission, the applicant’s pension was being calculated by taking into account 55% of the running allowance. However, while issuing the revised PPO on 28.01.2020, the respondents did not take the said 55% running allowance into account for fixation of pension and also wrongly changed the applicant’s staff category from “Mail Express Guard” to “General”. Learned counsel for the applicant further argued that on the applicant’s representation, the respondents corrected the staff category from “General” to “Mail Express Guard”, thereby accepting the mistake committed in the PPO. However, despite correction of the category, the respondents failed to include 55% running allowance while refixing the applicant’s pension. It is further argued that the applicant’s pension had earlier been correctly fixed under the 6^th Pay Commission by taking into account 55% running allowance. The said position is also reflected in the PPO issued at the relevant time. Therefore, the respondents could not have denied the benefit of the running allowance while refixing the pension under the 7^th Pay Commission. Learned counsel for the applicant next argued that the pension ought to have been calculated by taking the basic pay of Rs.50,500/- and adding 55% running allowance of Rs.25,250/-, making a total of Rs.75,750/-. 50% of the said amount comes to Rs.37,875/-, whereas the respondents have fixed the applicant’s pension at only Rs.31,193/-. It is also submitted that the applicant’s basic pay, as calculated under the 6^th Pay Commission, was Rs.3,658/- at the time of his retirement. He submitted that his pension was accordingly fixed at Rs.1,829/-. On the basis of the applicable pay fixation table under the 7^th Pay Commission, the applicant claims that his notional pay ought to have been fixed at Rs.67,200/- and his pension at Rs.33,600/-, apart from admissible Dearness Relief. Learned counsel for the applicant submitted that the respondents have failed to properly apply the relevant rules and instructions while refixing the applicant’s pension. The non-inclusion of 55% running allowance has resulted in fixation of pension at a lower rate, causing continuous financial loss to the applicant. It is further submitted that the applicant is a retired railway employee and is more than 92 years of age. His genuine claim for correct fixation of pension should not be rejected on technical or irrelevant grounds. The respondents are under an obligation to correctly determine and pay the pension to which the applicant is legally entitled. Learned counsel for the applicant next submitted that the benefit of 55% running allowance has not been taken into account. The respondents may accordingly be directed to refix the applicant’s pension in accordance with the applicable rules and instructions, grant him consequential arrears and pay the same with appropriate interest.

In rebuttal, learned counsel for the respondents opposed the claim of the applicant and argued that the applicant retired from service on 30.09.1992 and has approached the Tribunal after an unexplained delay of more than 32 years. The applicant has not given any satisfactory explanation for such an inordinate delay. It is further submitted that the applicant has neither filed an application for condonation of delay nor explained the delay on a day-to-day basis. Therefore, the Original Application is highly barred by limitation. Under Section 21 of the Administrative Tribunals Act, 1985, an Original Application is required to be filed within the prescribed period, ordinarily one year from the date on which the cause of action arose. Learned counsel for the respondents further submitted that the applicant cannot seek reopening of his pension fixation after such a long and unexplained period. The present claim is therefore liable to be rejected on the ground of limitation alone.

On merits, learned counsel for the respondents next argued that the applicant’s pension has been correctly fixed and there is no illegality or infirmity in the same. His notional pay was correctly fixed at Rs.2,360/- in the scale of Rs.1,400-2,600 at the time of retirement, as reflected in PPO No. 19927320200063 dated 18.11.2022. It is submitted that the applicant’s pay/pension was revised under the successive Pay Commissions in accordance with the applicable rules. The relevant pay particulars show that his notional pay was taken into account while revising his pension under the 4^th , 5^th, 6^th and 7^th Pay Commissions. Learned counsel further submits that under the 7th Pay Commission, the applicant’s notional pay was correctly taken as Rs.50,500/- at Level-6. The fact that 55% of the said amount comes to Rs.25,250/- does not mean that the said amount has to be added again to the pension. The benefit of the 55% pay element applicable to running staff had already been taken into account while fixing the pension. It is further submitted that Railway Board’s RBE No. 13/2018 dated 24.01.2018 clearly provides that, in the case of retired running staff, Dearness Relief is payable on the pension already fixed by taking into account 55% of the pay element. The said 55% pay element is not to be reckoned again for the purpose of Dearness Relief. Learned counsel for the respondents next argued that the applicant’s pension was accordingly calculated through the ARPAN system, treating him as a member of the safety category/running mobile staff. His pension was fixed at Rs.31,193/-in accordance with the applicable rules and instructions. He again contended that 55% running allowance was completely ignored while fixing his pension is not correct. The applicant is seeking to add the 55% pay element again, which is not permissible under the Railway Board instructions. Thus, argued that applicant has failed to establish any illegality or arbitrariness in the fixation of his pension. The Original Application is highly delayed as well as devoid of merit and is liable to be dismissed.

I have considered the rival submissions and have gone through the record carefully.

The first issue which arises for consideration is with regard to the delay in filing the present Original Application. It is not in dispute that the applicant retired from service on 30.09.1992. However, the grievance raised by the applicant relates to the alleged incorrect fixation of his pension after implementation of the 7^th Pay Commission and the non-inclusion of 55% running allowance/pay element in the revised pension.

In the present case, the applicant is not seeking reopening of his entire pensionary benefits merely on the basis of his retirement in the year 1992. His grievance is with regard to the alleged incorrect fixation and continued payment of pension at a lower rate. The payment of pension at an allegedly incorrect rate gives rise to a recurring cause of action, as the applicant receives pension every month.

It is also relevant that the applicant submitted a representation dated 26.06.2023 before the competent authority raising his grievance regarding the alleged non-inclusion of 55% running allowance. Thus, the applicant has been pursuing his grievance before the departmental authorities.

In view of the nature of the claim, namely, fixation and payment of pension, which is a recurring benefit and considering that the applicant is an aged pensioner stated to be more than 92 years of age, this Tribunal is of the view that the applicant should not be deprived of relief merely on the ground of delay. Accordingly, the delay in filing the present Original Application is condoned in the interest of justice.

Coming to the merits of the case, the applicant claims that the benefit of 55% running allowance/pay element, which was taken into account while fixing his pension under the earlier Pay Commissions, has not been properly taken into account while revising his pension under the 7^th Pay Commission. He has also relied upon the earlier PPOs and the subsequent correction of his staff category. On the other hand, the respondents have submitted that the applicant’s pension was correctly revised vide PPO No. 19927320200063 dated 18.11.2022 and his notional pay was correctly fixed at Rs.50,500/- at Level-6. According to the respondents, the benefit of 55% pay element applicable to running staff had already been taken into account while fixing the pension. Reliance has also been placed upon RBE No. 13/2018 dated 24.01.2018.

On a consideration of the pleadings and submissions of both sides, the controversy essentially centres around the question as to whether the applicant has been extended the benefit of 55% pay element/running allowance while revising his pension. According to the applicant, the said benefit has not been properly given to him, whereas the respondents states that the same has already been duly incorporated in the pension fixation as per the applicable rules and Railway Board instructions.

In view of the aforesaid deliberations, the Original Application is disposed of with a direction to the competent authority to reconsider the applicant’s claim for fixation of pension by taking into account 55% running allowance/pay element, in accordance with the applicable Railway Board instructions and the relevant pension records. The competent authority shall consider the applicant’s representation dated 26.06.2023, the earlier and revised PPOs, the relevant pay-fixation records and RBE No. period of three months from the date of receipt of a certified copy of this order. While considering the matter, the respondents shall also consider the applicant’s claim sympathetically, keeping in view his advanced age. If any amount is found due to the applicant, the same shall be paid to him in accordance with rules within the aforesaid period, along with simple interest at the rate of 6% per annum. There shall be no order as to costs. All pending Misc. Applications, if any, stand disposed of.