7th CPC: Entitlement for pensionary benefits in accordance with 7th CPC whose date of birth is 1.1.1956 and retired on superannuation w.e.f. 31.12.2015 – CAT Principal Bench, New Delhi Order

7th CPC: Entitlement for pensionary benefits in accordance with 7th CPC whose date of birth is 1.1.1956 and retired on superannuation w.e.f. 31.12.2015 – CAT Principal Bench, New Delhi Order



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)


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:
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“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.
7. The applicant has filed rejoinder to the reply, in which no substantial
issue has been raised except saying that it is settled position of law by a
catena of judgments of Hon’ble Tribunal, Hon’ble High Courts and Hon’ble
Supreme Court that a person whose date of birth is 1st of a month is deemed
to have retired from service from that date only.
8. On completion of the pleadings the case was taken up for hearing the
arguments of the parties on 13.02.2018. Arguments of Shri L.R. Khatana,
learned counsel for the applicant and that of Shri N.D. Kaushik, learned
counsel for the respondents were heard. Shri Khatana, besides reiterating
the averments made in the OA relied on the following judgments to buttress
his argument that the applicant is deemed to have retired from service on
1.1.2016 since his date of birth is 1.1.1956:
i) Judgment of the Kerala High Court in Union of India v. George, [2004 (1)
ATJ 150]; held:


“16. We are unable to accept this contention. The two officials had
actually continued in service till the midnight of December 31, 1995.
It is only from January 1, 1996 that they had ceased to be in service
and acquired the status of pensioners. Resultantly their claim to
pension had to be determined at the rate prevalent on the date. This is
precisely what the Tribunal has given them. The case is in no way
different from that of Banerjee. In both cases, the pay had been paid
till December 31”
ii) Judgment of Hon’ble Karnataka High Court in Union of India & others
v. Col. Bhupinder Singh (Retd.) Major, [Writ Appeal No.3897 of 2005, dated
11.09.2009], held:
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“The decision reported in 1989 Supp. 2 SCC 486 (S. Banerjee v. Union of
India & Ors.) has been followed by the learned Single Judge while
passing the impugned order. In that case the appellant had filed an
application for voluntary retirement which was accepted from the
forenoon of 1st January, 1986 and in that view of the matter, he was
found to be entitled to the benefit of para 17.3 of the recommendation
of the Pay Commission. This decision is not applicable to the case of
the respondent in the instant case as per Army Rules, which is
applicable to the respondent who retired on 31.12.1995. None of the
decision cited by the respondent are applicable to the case on hand. On
the other hand, the decision cited by the respondent are applicable to
the case on hand. On the other hand, the decision cited by the learned
counsel for the appellants are applicable on all the fours to the case
on hand and the impugned order calls for interference.”
iii) Judgment of Hon’ble Andhra High Court in Union of India and Ors. V.
P.S.R. Kumar Sinha and Anr.¸[2006 (2) ALT 354:2006 (3) ALD 57]; held


“6:17. Supreme Court Ruling In S. Benerjee v. Union of India , a
definite finding is on record by their Lordships of the Supreme Court
of mdia that when the employee has retired on the last date of the
month, his date of retirement has to be treated as 1st date of
succeeding month.

6:18. It is a direct decision on the issue before us.


6:19. Full Bench Decision of A.P. High Court Principal Accountant
General A.P. v. C. Subba Rao While answering Point No. 2 the Full Bench
of this Court categorically held as follows:

A Government servant who would be retiring on the last day of the month
would cease to be Government servant by mid-night of that day and he
would acquire status of pensioner and therefore he would be entitled
for all the benefits given to a pensioner with effect from first day of
the succeeding month.”
iv) Order of this Tribunal in Satish Kumar v. Union of Inida & Ors.,
[OA No.792.2004, dated 25.11.2004], held:


“It is trite law that for want of any decision to the contrary of the
High Court, under whose jurisdiction the Bench of the Tribunal is
situated, a decision of the High Court of another State would be
binding as a precedent on the Tribunal and having regard to the
decision of the Apex Court in S. Banerjee vs. Union of India, AIR 1990
SC 295, relied upon by Kerala High Court, the case of the applicant, in
all fours, is covered by the ratio decidendi of the decision of the
High Court. Having regard to the fact that he is deemed to have retired
on 1.4.2004 special dispensation as mentioned in para 3 of the OM ibid
would apply to him.”
8.1 Shri Khatana concluded his arguments by submitting that the case of the
applicant is squarely covered by the above judgments and hence the relief
claimed may be granted.
9. Leaned counsel for the respondents by and large reiterated the averments
made in the reply filed on behalf of the respondents.
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10. I have considered the contentions of the learned counsel for the
parties and have gone through the pleadings and documents annexed thereto.
All the judgments of the Hon’ble High Courts as well as of the Tribunal
relied upon by the applicant are primarily based on the judgment of the
Hon’ble Apex Court in S. Banerjee (supra), wherein it has been held as
under:-


“The question that arises for our consideration is whether the
petitioner has retired on January 1, 1986. We have already extracted
the order of this Court dated December 6, 1985 whereby the petitioner
was permitted to retire voluntarily from the service of the Registry of
the Supreme Court with effect from the forenoon of January 1, 1986. It
is true that in view of the proviso to rule 5(2) of the Rules, the
petitioner will not be entitled to any salary for the day on which he
actually retired. But, in our opinion, that has no bearing on the
question as to the date of retirement. Can it be said that the
petitioner retired on December 31, 1985? The answer must be in the
negative. Indeed, Mr. Anti Dev Singh, learned counsel appearing on
behalf of the respondents, frankly conceded that the petitioner could
not be said to have retired on December 31, 1985. It is also not the
case of the respondents that the petitioner had retired from the
service of this Court on December 31, 1985. Then it must be held that
the petitioner had retired with effect from January 1, 1986 and that is
also the order of this Court dated December 6, 1985. It may be that the
petitioner had retired with effect from the forenoon of January 1, 1986
as per the said order of this Court, that is to say, as soon as January
1, 1986 had commenced the petitioner retired. But, nevertheless, it has
to be said that the petitioner had retired on January 1, 1986 and not
on December 31, 1985. In the circumstances, the petitioner comes within
the purview of paragraph 17.3 of the recommendations of the Pay
Commission.”
11. This judgment has attained finality and thus holds the field today. It
is clearly held by the Hon’ble Apex Court in S. Banerjee (supra) that in
case of all those Government servants whose date of birth is 1st of a
month, they are supposed to have retired from that date only.
12. In the instant case, the applicant’s date of birth is admittedly
1.1.1956 and thus relying on the ratio of law laid down by the Hon’ble Apex
Court in S. Banerjee (supra), he is deemed to have retired from service on
1.1.2016. Hence, he is entitled for getting all his pensionary benefits in
accordance with the 7th Central Pay Commission’s recommendations.
Accordingly, this OA is allowed. The impugned Annexure A-1 order is
declared illegal and accordingly quashed and set aside. The respondents are
directed to fix the retiral benefits of the applicant in accordance with
the 7th Central Pay Commission’s recommendations which have been
implemented vide O.M. No. 38/37/2016-P&PW(A)(i), (ii) & resolution
dated 04.08.2016 in respect of pensioners retiring on or after 1.1.2016.
 
This shall be done within a period of three months from the date of receipt
of a certified copy of this order. No costs.

(K.N. Shrivastava)
Member (A)

‘San.’

Source:

Principal CAT, Delhi Website Click to download the PDF



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