Central Administrative Tribunal
Principal Bench
New Delhi

OA No.571/2017

Order Reserved on: 13.02.2018
Pronounced on: 17.04.2018

Hon’ble Mr. K.N. Shrivastava, Member (A)

G.C. Yadav,
S/o late Kamal Singh Yadav,
(aged about 61 years)
(retired as Deputy Secretary)
R/o H.No.1627/3, Lane No.6,
Rajiv Nagar, Mata Road,
Gurugram-122001.

– Applicant

(By Advocate Shri L.R. Khatana)

-Versus-

1. Union of India
Through Secretary to the Govt. of India,
Ministry of Home Affairs,
North Block, New Delhi-110001.

2. Secretary to the Govt. of India,
Department of Pension & Pensioners’ Welfare,
Ministry of Personnel, Public Grievances & Pensions,
North Block, New Delhi-110001.

3. Secretary to the Govt. of India,
Department of Personnel & Training,
Ministry of Personnel, Public Grievances & Pensions,
North Block, New Delhi-110001.

-Respondents

(By Advocate Shri N.D. Kaushik)
(OA No.571/2017)

O R D E R

The applicant retired from the post of Deputy Secretary in the Ministry of Home Affairs, Government of India with effect from the afternoon of 31.12.2015 on attaining the age of superannuation. His date of birth is 01.01.1956. He has been deprived of the benefits of 7th Central Pay Commission’s recommendations, which came into effect w.e.f. 01.01.2016 on the ground that he retired prior to that date i.e. 31.12.2015.
2. The applicant submitted his representation dated 14.12.2015 (Annexure A-4 colly.) to the Secretary, Department of Personnel & Training (DoP&T) (respondent no.3) stating therein that he would cease to be a Government servant in the midnight of 31.12.2016 and thus acquired the status of a pensioner in the forenoon of 1st January, 2016. Hence, he is entitled to all the pensionary benefits viz. gratuity, fixation of pay/pension as per 7th Central Pay Commission’s recommendations. The representation dated 14.12.2015 of the applicant was forwarded by the Additional Secretary (S&V), DoPT to the Joint Secretary, Pension, Department of Pension and Pensioner’s Welfare (DoP&PW) vide letter dated 29.02.2016. The relevant portion of  the said letter is extracted below:

“2. In his representation, Shri Yadav has contended that the pensionary benefits accrue to a person when he acquires the status of Pensioner. As per the judgment of the Hon’ble Supreme Court in the case of S. Banerjee, the persons born on 1st January, 2015 were in Government service upto midnight of 31st December, 2015 and acquired the status of pensioner only in the forenoon of 1st January, 2016. Applying the law laid down by the Hon’ble Supreme Court in the case of S. Banerjee, the persons born on 1st January, 1956 acquired the status of pensioner only in the forenoon of 1st January, 2016. The recommendations of the 7th Pay Commission are likely to be implemented with effect from 1st January, 2016.”

3. Pursuant to the implementation of the 7th Central Pay Commission’s recommendations, DoP&PW (respondent No.2) issued Annexure A-2 Om dated 04.08.2016 revising the pension of pre-2016 pensioners/family pensioners. The grievance of the applicant is that his retiral benefits have been fixed in terms of Annexure A-2 OM, treating him as a pre-2016 retiree whereas he should be treated as a retiree w.e.f. 1.1.2016 and thus the 7th Central Pay Commission’s benefits should  accrue to him.
4. Respondent No.2 considered the representation dated 14.12.2015 of the applicant, which was duly forwarded by the DoPT vide aforementioned letter dated 29.02.2016 and vide impugned Annexure A-1 OM dated 03.01.2018 has declined the request of the applicant. The relevant portions of this OM are reproduced below:

“4. In the case of Shri Yadav, he actually retired on 31.12.2015 and was not in service on 1.1.16. Judgment of Hon’ble Supreme Court in the case of Shri S. Benerjee has no relevance in his case. In fact Rule 5 (2) of CCS (Pension) Rules, has already been amended and as per the amended rule date of voluntary retirement is treated as the last working day. Therefore, those who retired voluntarily on 1.1.2016 would be eligible for pay and pension benefits of 7th CPC as a post 1.1.2016 retiree.

5. Since Shri Yadav retired on superannuation on 31.12.2015, he is to be treated as a pre-2016 pensioner and is accordingly entitled to the benefit in revision of pension under the OM No.38/37/46-P&PW(A)(ii), dated 4.8.16.”

5. Aggrieved by the impugned Annexure A-1 OM dated 03.01.2017, the applicant has filed the instant OA praying for the following relief:

“B) That this Hon’ble Tribunal may be pleased to hold and declare that the impugned orders/action of the respondents is illegal, arbitrary, discriminatory, unconstitutional and violative of Articles 14 and 16 of the Constitution of India and quash and set aside the same and be pleased to further hold that since the Applicant superannuated with effect from the afternoon of 31.12.2015 and relinquished the charge of the post of Deputy Secretary in the afternoon of that date, he, as per law, is deemed to have effectively retired on or with effect from 1.1.2016 and therefore, cannot be treated as pre-2016 pensioner and direct the respondents to grant the retiral benefits such as fixation of pension, DCRG, commutation of pension, leave encashment etc. accordingly and pay the arrears thereof  with 12% interest within a specified time-frame.”

6. Pursuant to the notices issued, the respondents entered appearance and filed their reply in which they have broadly made the following important averments:

6.1 The applicant retired from Government service on 31.12.2015 and accordingly he has been treated as a pre-2016 pensioner and his pensionary benefits have been fixed in terms of the OM dated 4.8.2016 (Annexure A-2) of the DoP&PW.

6.2 As per the provisions of FR 56(a), a Government servant whose date of birth is first of a month shall retire from service in the afternoon of the last day of the preceding month on attaining the age of 60 years. Hence, the applicant, whose date of birth is 1.1.1956 is deemed to have been retired in the afternoon of 31.12.2015.

6.3 The judgment of Hon’ble Supreme Court in S. Banerjee v.Union of India, [AIR 1990 SC 295], relied upon by the applicant in para 4 (d) of the OA, is not relevant in the instant case. It is stated that Shri S. Banerjee had retired voluntarily and his date of retirement was 1.1.1986 whereas in the instant case the applicant retired on attaining the age of superannuation in the afternoon of 31.12.2015 and as such was not in service on 1.1.2016.

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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.09.2017
CORAM
THE HON’BLE MR.JUSTICE HULUVADI G.RAMESH
AND
THE HON’BLE MR.JUSTICE RMT.TEEKAA RAMAN
W.P.No.15732 of 2017

P.Ayyamperumal …

Petitioner

-vs-

1.The Registrar,
Central Administrative Tribunal,
Madras Bench,
High Court Complex,
Chennai-600 105.

2.Union of Indirep.by
the Chairman, CBEC,
North Block,
New Delhi-110 001.

3.Union of India rep.by
Department of Personnel & Training
New Delhi.

4.The Director of General (Inspection),
Customs & Central Excise,
“D” Block, I.P.Bhawan, I.P.Estate,
New Delhi-110 002.

.. Respondents

Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorarified Mandamus calling for the records of the first respondent in O.A./310/00917/2015 dated 21.03.2017 and quash the same and consequently direct the fourth respondent to treat the retirement date of the petitioner as on 01.07.2013 and grant all the consequential benefits including the pensionary benefits.

For Petitioner :: Mr.P.Ayyamperumal,
Petitioner-in-Person
For Respondents :: Mr.K.Mohanamurali,

ORDER

(Order of the Court was made by
HULUVADI G.RAMESH, J.)

This writ petition has been filed to quash the order passed by the first respondent-Tribunal in O.A./310/00917/2015 dated 21.03.2017 and to consequently direct the fourth respondent to treat the retirement date of the petitioner as 01.07.2013 and grant him all the consequential benefits including the pensionary benefits.

2.The case of the petitioner is that he joined the Indian Revenue Service in Customs and Excise Department in the year 1982 and retired as Additional Director General, Chennai on 30.06.2013 on attaining the age of superannuation. After the Sixth Pay Commission, the Central Government fixed 1st July as the date of increment for all employees by amending Rule 10 of the Central Civil Services (Revised Pay) Rules, 2008. In view of the said amendment, the petitioner was denied the last increment, though he completed a full one year in service, ie., from 01.07.2012 to 30.06.2013. Hence, the petitioner filed the original application in O.A.No.310/00917/2015 before the Central Administrative Tribunal, Madras Bench, and by order dated 21.03.2017, the Tribunal rejected the claim of the petitioner by taking a view that an incumbent is only entitled to increment on 1st July if he continued in service on that day. Since the petitioner was no longer in service on 1st July 2013, he was denied the relief. Challenging the order passed by the Tribunal, the present writ petition is filed.

3.The petitioner, appearing as party-in-person, has referred to the judgment passed by this Court in State of Tamil Nadu, rep.by its Secretary to Government, Finance Department and others v.M.Balasubramaniam, reported in CDJ 2012 MHC 6525, wherein the appeal filed by the State challenging the order passed in the writ petition entitling the employee who was similarly placed like that of the petitioner, the benefit of increment on the ground that he has completed one full year of service from 01.04.2002 to 31.03.2003, was rejected. Referring to that judgment, the petitioner has submitted that the said benefit has to be extended to him. He further submitted that even though the above decision squarely covers his case, no mention has been made by the Central Administrative Tribunal as to how that decision is not applicable to him. With regard to the said issue, the petitioner has also referred to the order passed by the Government of Tamil Nadu in G.O.Ms.No.311, Finance (CMPC) Department, dated 31.12.2014, and submitted that in the said G.O., it has been mentioned that the Pay Grievance Redressal Cell has recommended that when the date of increment of a Government

servant falls due on the day following superannuation on completion of one full year of service, such service may be considered for the benefit of notional increment purely for the purpose of pensionary benefits and not for any other purpose. Stating so, the petitioner prayed for allowing this writ petition.

4.Heard the learned Senior Panel Counsel appearing for the respondents 2 to 4 on the submissions made by the petitioner and perused the materials available on record.

5.The petitioner retired as Additional Director General, Chennai on 30.06.2013 on attaining the age of superannuation. After the Sixth Pay Commission, the Central Government fixed 1st July as the date of increment for all employees by amending Rule 10 of the Central Civil Services (Revised Pay) Rules, 2008. In view of the said amendment, the petitioner was denied the last increment, though he completed a full one year in service, ie., from 01.07.2012 to 30.06.2013. Hence,

the petitioner filed the original application in O.A.No.310/00917/2015 before the Central Administrative Tribunal, Madras Bench, and the same was rejected on the ground that an incumbent is only entitled to increment on 1st July if he continued in service on that day.

6.In the case on hand, the petitioner got retired on 30.06.2013. As per the Central Civil Services (Revised Pay) Rules, 2008, the increment has to be given only on 01.07.2013, but he had been superannuated on 30.06.2013 itself. The judgment referred to by the petitioner in State of Tamil Nadu, rep.by its Secretary to Government, Finance Department and others v. M.Balasubramaniam, reported in CDJ 2012 MHC 6525, was passed under similar circumstances on 20.09.2012, wherein this Court confirmed the order passed in W.P.No.8440 of 2011 allowing the writ petition filed by the employee, by observing that the employee had completed one full year of service from 01.04.2002 to 31.03.2003, which entitled him to the benefit of increment which accrued to him during that period.

7.The petitioner herein had completed one full year service as on 30.06.2013, but the increment fell due on 01.07.2013, on which date he was not in service. In view of the above judgment of this Court, naturally he has to be treated as having completed one full year of service, though the date of increment falls on the next day of his retirement. Applying the said judgment to the present case, the writ petition is allowed and the impugned order passed by the first respondent-Tribunal dated 21.03.2017 is quashed. The petitioner shall be given one notional increment for the period from 01.07.2012 to 30.06.2013, as he has completed one full year of service, though his increment fell on 01.07.2013, for the purpose of pensionary benefits and not for any other purpose. No costs.

Index : Yes/No
Internet : Yes/No

(H.G.R.,J.) (T.K.R.,J.)
15.09.2017

KM

To

1.The Registrar,
Central Administrative Tribunal,
Madras Bench, High Court Complex,
Chennai-600 105.

2.The Chairman, CBEC,
Union of India,
North Block,
New Delhi-110 001.

3.Department of Personnel & Training,
Union of India,
New Delhi.

4.The Director of General (Inspection),
Customs & Central Excise,
“D” Block, I.P.Bhawan, I.P.Estate,
New Delhi-110 002.

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