Revision of Pension of Pre 2006 Pensioners – Benefit of upgradation of Posts subsequent to retirement – Railway Senior Citizens Welfare Society Memorandum
Railway Senior Citizens Welfare Society has submitted a request to the Secretary, Ministry of Personnel, AR, PG & Pension, for Admissibility of benefit of upgradation of Posts subsequent to retirement
RAILWAYS SENIOR CITIZENS WELFARE SOCIETY
(Estd. 1991, Regd. No. 1881 – Under Registration of Societies Act),
Head Office: 32, Phase- 6, Mohali Chandigarh -160055
Website http:/www.rscws.com Email: firstname.lastname@example.org
Identified & Recognised by DOP&PW GOI under Pensioners Portal
No. RSCWS/ CHD/Memo/2016-5
Govt. of India,
Ministry of Personnel, AR, PG & Pension,
Subject: Revision of Pension of Pre 2006 Pensioners – Reg: Admissibility of benefit of upgradation of Posts subsequent to retirement
i) Resolution of GOI No. 38/37/08-P&PW (A) dated 29-8-08 & OM Dated 1-9-08,
ii) DOP&PW O.M. F.No. 38/37/08-P&PW (A) dated 3-10-08, 14-10-08 & 11-2-09
iii) DOP&PW O.M. F.No. 38/37/08-P&PW (A) dated 30-7-2015
iv) Our Memorandum No. RSCWS/ CHD/Memo/2016-2 Dated 24-2-2016 to Hon’ble
Prime Minister (Copy attached)
1. We humbly reiterate our submissions made in our Memorandum of even No. Dated 24-2-2016, to Hon’ble Prime Minister with a copy to your honour Reg. Minimum pension for Pre-2006 Pensioners who retired from posts where pay scales have been merged / upgraded.
2. We once again seek your benign intervention in the matter, to ameliorate the suffering of a large number of Pre-2006 Pensioners and grant them the benefit of up-graded posts keeping in view the submissions made in our Memorandum dated 24-2-2016 and the additional submissions made hereunder:
3. The dates from which the various posts were upgraded or merged with higher grades, i.e. w.e.f. 1-1-1996 and 1-1-2006 etc., were quite arbitrary as far as the reasons for up- gradation were concerned. These cut-off dates could not be used as the reason for depriving the pensioners the benefit of upgrading or merger even at its minimum level of the corresponding scales from which the Pensioners had retired – as mentioned in detail in our Memorandum dated 24-2-2016 and as held by CAT Chandigarh in their judgements in the cases cited in Para 5 below which were upheld by the Hon’ble High Court Chandigarh and by the Hon’ble Supreme Court in SLP (CC) No. 22402/2015 decided on 05-01-2016.
4. The issue was discussed as Agenda item No.4 in the Meeting of JCM Staff Side with you on 10-3-2016, wherein you had very kindly agreed to reconsider the matter as indicated in the following records of the meeting:
“Grant of modified parity to all those who retired prior to 1.1.2006, with reference to the upgraded post. The Staff Side stated that the Department of Pension has taken a very narrow view of the matter and the cases are dragged to the courts of law. The very spirit of the recommendation of the 5th CPC to bring about at least modified parity if not full parity has not been appreciated by the Govt. The issue was discussed at length. The official side pointed out the decisions of the Court in favour of the position taken by the Government in the case of K.S. Krishnaswamy in (CA No.) 3174/2006, which has been upheld by the Honourable Gujarat High Court.
In reply the Staff Side pointed out that the said decisions quoted by the official side had come about due to the phrase employed while issuing the original order viz. corresponding replacement scale.
After some discussions, the Chairman agreed to look into the matter afresh and revisit the order of the Department of Pension in the matter.”
5. a) Hon. Supreme Court of India had dismissed the SLP (CC) No. 22402/2015 of Union of India/Ministry of Railways on 05-01-2016 against the common order dated 29-1-2015 of Hon’ble High Court, Chandigarh in CWP No. 8563 of 2014 (UOI & Ors. VS. Darshan Lal Bali & Ors.), 2005 of 2014 (UOI Vs Tilak Raj & Ors.) and 25072 of 2014 (Banarsi Das & Anr).
b) In the above said Judgment the Courts had directed the Railways to give the benefit of up-gradation of posts for the Revision of Pension to the Pre-1996 Pensioners and Pre-2006 Pensioners.
c) Ministry of Railway/ Railway Board had since then decided to implement the said judgment of Hon’ble High Court Chandigarh and had issued the orders vide their letter No. PC-III/2013/CTC-1/4 dated 1-2-2016) for the applicants only and directed the General Manager Northern Railway to take the necessary action in this regard immediately and confirm it at the earliest.
d) Confining the said benefit of up-gradation only to the applicants is discriminatory. Disallowing the benefit to the other Pre-2006 Pensioners – whose posts had been upgraded subsequent to retirement – is against the settled law of natural justice and it violates Articles 14, 16 and 39 of the Constitution of India.
e) Hon’ble Punjab & Haryana High Court, Chandigarh, has held as unit der in their order dated 29-1-2015 in CWP No. 8563 of 2014 (UOI & Ors. VS. Darshan Lal Bali & Ors.) – which has been upheld by the Hon. Supreme Court of India on 05-01-2016, while dismissing the SLP (CC) No. 22402/2015 of Union of India against the same:
“The petitioner(s) are a welfare State. They cannot and ought not to expect the respondent-retirees to roam in the corridors of Courts. The conscious decision taken by the petitioner(s) to extend benefit of their 2003 Circular to a batch of pre-1996 retirees amounts to shift in their policy, therefore, also the respondents being similarly placed retirees, are entitled to the benefit of revised Policy decision, even if such decision has emanated out of the command issued by this Court in Agia Ram and others’ case. The denial of benefit of revised higher pension etc. to the respondents when it stands granted to other similarly placed retirees, certainly does violence to Articles 14 and 16 of the Constitution.”
6. a) Hon’ble Supreme Court of India in the case of D.S. Nakara V/S Union of India & Ors.  1 SSC 305, had held that pensioners form a class as a whole and cannot be micro- classified by an arbitrary, unprincipled and unreasonable eligibility criteria for grant of revised pension.
b) Even though the apex Court had in some subsequent judgment held differently, but the latest decisions of the Hon’ble Supreme Court of India, as mentioned hereafter, had upheld the law laid down in D. S. Nakara’s case, and as such are applicable in all cases thereafter – including the issue under reference – as per settled law.
7. Hon’ble Supreme Court of India had held as under in case of Union of India Anr. VS SPS Bains (Retd.) & ors. [(2008) 2 SCC (h 838)]:
“30 …….. the submissions advanced on behalf of the Union of India cannot be accepted in view of the decision in D.S. Nakara’s case (supra). The object sought to be achieved was not to create a class within a class, but to ensure that the benefits of pension were made available to all persons of the same class equally. To hold otherwise would cause violence to the provisions of Article 14 of the Constitution. It could not also have been the intention of the authorities to equate the pension payable to officers of two different ranks by resorting to the step up principle envisaged in the Fundamental Rules in a manner where the other officers belonging to the same cadre would be receiving a higher pension.
“31. We, accordingly, dismiss the appeal …… “ (CA NO.5566 OF 2008 SLP (CIVIL) NO. 12357 of 2006 decided on 9-9-2008)
8. The issue of upgraded posts, dealt with in case of K.S. Krishnaswamy in CA No.3174/2006, was different and could not applied for denial of benefit of upgraded posts to the Pre-2006 Pensioners in view of the subsequent judgment of the Supreme Court in SLP (CC) No. 22402/2015 cited in Para 5 above, wherein, the Court had directed the Railways to give the benefit of up-gradation of posts for the Revision of Pension to the Pre-1996 Pensioners and Pre-2006 Pensioners.
9. The benefit of up-gradation of Posts for Revision of Pension of Pre-2006 Pensioners could not be denied as the accepted recommendations of the Sixth Pay Commission as approved by the Cabinet vide Government of India Gazet Notification dated 29-8-2008, did not disallow the said benefit.
10. It is , therefore, requested as under:
i) Pre-2006 Pensioners be given the benefit of upgradation of Posts subsequent to retirement and the revised consolidated pension of pre-2006 pensioners be not lower than 50% of the minimum of the upgraded pay in the Pay Band and the grade pay of the post corresponding to that of the post from which the pensioners had retired; And
ii) Para 5 of DOP&PW O.M. F.No. 38/37/08-P&PW (A) dated 11-2-09 – (disallowing the benefit of upgradation of Posts subsequent to retirement) – may please be deleted.
Secretary General, RSCWS