Agenda for National Anomaly Committee Meeting Part-2
ITEM NO. 11
GRANT REVISED ALLOWANCES WITH EFFECT FROM 1.1.2006
Allowances form part of wages. That being so, allowances too should be revised with effect from the same date from which Revised Pay Scales have been implemented i.e. 1.1.2006. There is hardly any justification for granting revised allowances with effect from 1.9.2008 i.e. after a lapse of 32 months. Certain Special Pay like Qualification Special Pay, which has now been treated as Special Qualification Allowance, is also being revised with effect from 1.9.2008. Since this Allowance is treated as pay for the purpose of fixation of pay on promotion to higher posts, senior employees, who might be promoted during the period from 1.1.2006 to 31.8.2008, would be fixed at a lower stage due to pre revised Special Qualifying Allowance than those junior hands who are promoted to higher posts on or after 1.9.2008, creating an anomaly. It is, therefore, necessary that such Qualification (Pay) Allowance is revised with effect from 1.1.2006.
In case of HRA and other allowances, which are paid as a percentage of pay, even on the pre revised pay, have to be paid as a percentage of the revised pay for the period from 1.1.2006 to 31.8.2008 and not on the prerevised pay which ceases to exist on and after 1.1.2006. No orders to do so have so far been issued. The Family Planning Increment has to be granted at the rate of revised Increment with effect from 1.1.2006. Instead it has been sanctioned as Family Planning Allowance with effect from 1.9.2008 at flat rates. During the period from 1.1.2006 to 31.8.2008 orders to regulate it at the rate of increment in the Revised Pay Scales have also not been issued.
For all these reasons, we demand that all allowances may be granted at the revised rates with effect from 1.1.2006.
ITEM NO. 12
The scheme of Transport Allowance was recommended by the V Central Pay Commission. Even at that time it had been pointed out that the rates of Transport Allowance had not been fixed rationally. Group C & D employees, who reside at far away places from their offices, have been given very low rates but the officers, who reside in Govt. accommodation very near their offices, have been given 8 times higher rates than the low paid employees. The matter had gone for arbitration and the Board of Arbitration had given an award increasing the rates of Transport Allowance, which has not yet been implemented though more than 3 years have since elapsed.
On these considerations there is a case for upward revision in the rates of Transport Allowance for low paid employees now belonging to PB-1. We, therefore, demand that Transport Allowance for employees below the Grade Pay of Rs. 4200 should also be revised to Rs. 1600+DA for the A-1/A towns and Rs. 1200/- + DA for other towns.
There are employees who remain on long tour duties as in the Audit Deptt., or field duties on survey sites during a long field season of more than 4-5 months. Since the CCA which was earlier admissible to them has been subsumed in the Transport Allowance, they are not getting any Transport Allowance while on tour for more than a month or for many months during which the field season lasts and they are, therefore, losing even the part of Transport Allowance which represents CCA.
It is, therefore, demanded that the condition of absence for more than a month for disentitling the employees for Transport Allowance may be done away with. During the survey season these employees have to roam the entire area which is being surveyed. The ground Water Board Staff have to go from their tents etc. to places where water availability is to be explored. Therefore they are also entitled to Transport Allowance during the field season. Since CCA was being included in wages for the purpose of revising the OTA rates, 50% of Transport Allowance may be counted as wages for determining the Overtime rates.
INCREASE OF TA (TRANSPORT ALLOWANCE) AT PER WITH PB – 3
Total amount of TA and CCA for A1 cities in PB – 3 with grade pay of Rs. 5400 and above were Rs. 1100. The new TA rate for these categories is Rs. 3200, 2.9 times the sum of the pre revised TA and CCA. The total amount of TA and CCA for A1 cities in pre revised scale of Rs. 6500-10500 and 7450 – 11500, which are now placed in PB -2 with grade pays of Rs. 4600 and 4200, were Rs. 700. The new TA rate for these categories is Rs. 1600, only 2.28 times the sum of the pre revised TA and CCA. TA should be increased at a uniform rate for all the categories since the purpose and elements for increase are the same for all levels. Transport Allowance should also be uniform all over the country as the cost of fuel is nearly the same – irrespective of the class or category of a city.
The rate of Transport Allowance should be increased 2.9 times the sum of the pre-revised TA & CCA, as in the case of PB-3.
REVISION OF EXISTING ALLOWANCES
There are certain allowances which are to be withdrawn and replaced by new schemes like Insurance for Risk Allowance, Patient Care Allowance etc. These schemes have so far not been formulated. When formulated, these will have to be discussed in the JCM for a before these are implemented. For the intervening period from 1.9.08 to the date on which these alternate schemes are implemented, the rates of these allowances may be doubled and implemented.
ITEM NO. 15
PARITY IN PENSION OF ALL PRE 1996 RETIREES WITH THOSE WHO RETIRED ON OR AFTER 1.1.96
The Government have already accepted in principle that there shall be parity in pension amongst pensioners irrespective of the date from which they had retired.
Accordingly pension of all pre 1986 retirees was revised with effect from 1.1.96 by first determining the notional pay which would have been fixed as on 1.1.86 (treating as if the employees were in service on that date) and then the Notional Pension was updated by applying the same fitment formula which was applied to serving employees.
We, therefore demanded that the notional pay of all pre 1996 retirees may be fixed as on 1.1.96 in terms of Revised Pay Rules, 1996 and the notional pension as on 1.1.96 may be revised w.e.f. 1.1.06 by applying the same fitment formula which is applied in the case of serving employees i.e. by multiplying the notional pension as on 1.1.96 by 1.86 + the Grade Pay of the Pay Scale (V CPC) from which they would have retired.
The revision of pension has been done by applying the formula of Basic Pension as on 1.1.96 + Dearness Pension (50% of Basic Pension) + Dearness Relief on Basic Pension + Dearness Pension+40% of Basic Pension.
This is not the same that has been granted to serving employees. In whose case the Grade Pay which is the fitment benefit is 40% of the maximum of the Pre-revised Pay Scale.
As such the Pensioners should also be granted 50% the of Grade Pay of the Pay Scale from which they had retired by way of fitment benefit and not 40% of Basic Pension.
ANOMALY IN REVISED PENSION TO PRE 2006 RETIREES.
It has been observed that the pension of the pre 2006 retirees having been fixed in terms of different sets of rules from those who retired on and after 1.1.2006 is fixed at a lower rate than that of those who are in identical pay scale at the same stage of pay but retiring on or after 1.1.2006.
The Supreme Court in the case of D.S. Nakara [ (1983)25CR 165] has laid down the following principles.
i). The date of retirement cannot constitute a valid criterion for determination of pension and any classification or pision made on such basis will be violative of Article 14 of the Constitution.
ii). Where all relevant considerations are the same i.e. persons holding identical posts cannot be treated differently in the matter of their pay while service, so also they cannot be treated different, when they have retired.
iii). In the matter of determination of pension the object sought to be achieved is not to create a class within a class, but to ensure that benefits of pension are made available to all persons of the same class equally.
In the latest judgment of the Supreme Court, in the case of S.P.P. Vain (J T 2008(10) SC 399) it has been further held that the pensioner‟s pay is to be fixed notionally at the rate given to similar serving employee on the cut off date and thereafter the quantum of pension is to be determined from that date.
These principal have not been kept in view while framing the rules for fixation of pension. By laying down different rules in respect of Pre 2006 retirees, Pre 2nd September 2008 retirees and post 2nd September retirees, three classes of pensioners have been envisaged which is violative of the principles laid down by the Apex Court. The following anomalies have arisen:-
I Junior getting more pension
Mr. A an Additional Secretary in the Pay Scale of Rs. 22400-24500 retiring on 31.12.2005, drawing pay of Rs. 24500 is fixed at 50% of Rs. 37400 + Grade Pay of Rs. 12000/-, which is Rs. 24700.
Mr.B Joint Secretary (working under Mr. A) in the Pay Scale of Rs. 18400-22400 retiring on 31.1.2006 drawing Rs. 18400 gets pension of Rs. 27350 because his revised Pay is fixed on 1.1.2006 at Rs. 54700, 50% of which is 27350.
II Two identically Placed Officers getting different pensions
Mr. A and B both are Additional Secretaries and have been drawing Rs. 24500 i.e. maximum of their pay scale Rs. 22400-24500. Mr. A retirees on 31.12.2005 and get pension of Rs. 24700 as on 1.1.2006. Mr B retires on 31.1.2006 and his pension is fixed as on 1.2.2006 at Rs. 35190 i.e. more than Rs. 10000/- (Rs.100490) than the former.
The VI CPC has recommended that pension will be subject to the provision that revised pension, in no case, shall be lower than 50% of the sum of the (minimum pay in the pay band and the grade pay thereon corresponding to the prerevised pay scale from which the pensioner had retired. This recommendation has been accepted by the Government vide para 4.2 of O.M.No.38/37/08-P&PW (A) dated 1.9.2008. The Government of India vide their OM. No.38/37/08 P&PW (A) Pt I dated 3.10.2008 reiterated vide their OM F No. 38/37/08-P& PW (A) dated 11.2.2009 have modified and ordered that the Pension calculated at 50% of the minimum of the Pay in the Pay Band Plus Grade Pay would be calculated at the minimum of the pay in the Pay Band (irrespective of the pre-revised scale of pay) plus the Grade Pay corresponding to the pre-revised Pay Scale. By so doing the 50% of pay in the Pay Band has been brought down to the minimum of the lowest Pay Scale in the Pay Band. In other words minimum pay in the Pay Band of PB 1 has been fixed at Rs. 5200 in respect of all the pay scale of that Pay Band, PB 2 has been fixed at Rs. 9300 in respect of Pay Scales of that Pay Band.
Mr. A who is in the prerevised Pay Scale of Rs. 7500-12000 will be getting Rs. 7050/- by way of 50% of minimum of Pay in the pay band Rs. 7050 (i.e. 50% of 9300+4800) and not Rs. 9380 (Rs.7500 X 1.86 + Rs. 4800) Qualifying the term “ minimum pay in the pay band” by the clause “irrespective of pre-revised scale of Pay” is, therefore, a modification in the Government decision taken and conveyed vide OM dated 1.9.2008. By doing this the very objective of ensuring at least parity in pension in respect of those retiring at the minimum of the pre-revised Post revised Pay Scales / Pay Band has been distorted. All employees have been brought to the level of minimum of Pay Band. This distortion in the Government decision has to be rectified appropriately.
DISPARITY IN PENSION/FAMILY PENSION BETWEEN PRE AND POST PENSIONERS / FAMILY PENSIONERS
An anomaly has arisen due to the application of two different fitment weightage, one for those who retired on or before 31.12.2005 and the other for those who were in service on 1.1.2006 but retired subsequently. The former got 40% of their basic pension as per para 4.1 of notification dated 1.9.2008 while the later got more than 60% of the minimum pay of the pre-revised scale in the form of distinct “Grade” pay under rule 7 of CCS (R.P) Rules 2008 as additional benefit.
Similarly pre-2006 Family Pensioners also are affected by this discriminator / fitment weightage. In short the benefit of new scale has not at all been extended to the pre 2006 pensioners / family pensioners except the provision under para 4.2 of the said notification stating that in no case, the revised pension shall be less than 50% of the minimum pay in the pay band plus grade Pay. This provision is of no help for most of the pre 2006 pensioners as the pay band plus grade pay in respect of most of the pre-revised pay scales is less than 200% of the pre-revised minimum pay unlike IV and V CPCs which had increased the minimum basic pay to more than 300% in all cases to avail of this provision effectively and meaningfully. The claim of the VI CPC that this is consistent with the fitment weightage being allowed in case of existing employees is country to the fact.
It would not be out of place to mention here the recommendation of the V CPC stating that the process of bridging the gap in pension of the past pensioners had already been set in motion by the IV CPC and the same had to be continued. This recommendation had been accepted by the Govt. in toto. Accordingly the pay of all the pre 1986 pensioners had been notionally fixed in IV CPC scales on 1.1.1996 allowing the same fitment weightage for both pre and post 1996 retirees. With this, there was no disparity in the pension among pre and post 1996 pensioners in the implementation of V CPC. Whatever parity ensured by the IV and V CPCs has been negated by the notification-dated 1.9.2008.
This is a clear infringement of the Fundamental Right guaranteed under article 14 of the Constitution as held by the Honorable Supreme Court in 1983 1 SCC 305 Constitution bench – O.S. Nakara and Others Vs Union of India stating in no uncertain terms that the case of retirement of an employee cannot form a valid criterion for classification, for if that is the criterion, those who retired by the end of the month will form a class by themselves, that the fixation of a cut-off date as a result of which equals were treated as unequal, was wholly arbitrary and that the class of pensioners could not be decided for the purpose of entitlement and payment of pension into those who retired by a certain date and those who retired thereafter and holding such pension is both arbitrary and unprincipled which did not stand the test of Article 14 of the Constitution.
Therefore it is urged that the fitment weightage given to the pre 2006 pensioners and family pensioners may be modified by extending the benefit of the new pay scales given effect to from 1.1.2006 and fixing their pay notionally on per with the employees who were in service on 1.1.2006 as was done in the case of pre 1986 pensioners to maintain and ensure parity of pension among all pensioners and family pensioners irrespective of the date of retirement or the death of the pensioners.
ITEM NO. 18
ANOMALY IN PENSION TO THOSE RETIRING WITHIN FIRST 9 MONTHS OF 2006 NOT FULLY RECTIFIED.
The Department of Pension & Pensioners Welfare, in their Clarificatory O.M. F.No. 38/37/08-P&PW (A) Pt II dated 3.10.2008, at Sl.No. 5 (para 12), have stipulated that, for the purpose of computing average emoluments in the case of Government servants who have opted for fixation of pay in the revised Pay Band and retire within 10 months from the date of coming over to the Revised Pay Band, basic pay for the 10 months period preceding retirement shall be calculated by taking into account pay as follows:
i) For the period during which pay is drawn in the revised Pay Structure – pay drawn in the prescribed Pay Band plus applicable grade pay or the pay in the Pay Scale in case HAG + & above:
ii) For the remaining period during the which pay is drawn in the pre-revised pay scale:-
a) Basic Pay + Dearness Pay and actual D.A. appropriate to the basic Pay at the rates in force on 1.1.2006 drawn during the relevant period.
b) Notional increase of basic pay by applying the fitment benefit of 40% on the basic pay in pre-revised Pay Scale
The average emoluments so computed would not fully rectify the anomaly as because those who have retired on 31.10.2008 and thereafter will get their average emoluments for all the 10 preceding months in the prescribed Pay Band plus applicable grade pay i.e. Basic Pay in pre-revised Pay Scale multiplied by 1.86+Grade Pay which is 40% of the maximum of the pre-revised pay scale or even more than that in the case of S-16 onwards. On the other hand what has been allowed as per above clarification in the case of these retiring within 10 months is Basic Pay in pre-revised Pay scale multiplied by 1.74 plus 40% of basic pay in the pre-revised pay scale. With a view to remove the anomaly it is demanded that for the period preceding 10 months during which pre-revised pay is drawn, the pay of those retiring between 1.1.06 and 30.9.06 should be taken as under:-
a) Basic Pay multiplied by 1.86
b) Notional increase in the basic pay by the Grade Pay applicable and not 40% of basic pay in the pre- revised Pay Scale.
ITEM NO. 19
REVISION OF PENSION OF THOSE WHO RETIRED DURING THE PERIOD 1.1.2006 TO 1.9.2008.
The recommendation of VI CPC for grant of full pension @ 50% of average emoluments received during last 10 months or the pay last drawn whichever is more beneficial to all employees rendering minimum of 20 years of service has been accepted.
Rule 49 (2) (a) of CCS (Pension) Rules, 1972 shall have to be revised by providing 20 years for 33 years and Rule 34 of the CCS(Pension) Rules 1972 will also undergo a change by including the last pay down if it is more beneficial as emoluments for the purpose of fixing pension.
It is, therefore, not correct to state that qualifying service of 20 years and average emoluments or the last pay drawn are not separable (vide Deptt. of Pension & Pensioners Welfare clarification NO. 1 in O.M.F.No.38/37/08-P&PW(A) Pt.II dated 3.10.2008)
The Commission‟s recommendation that payment of full pension on completion of 20 years of qualifying service may take effect prospectively i.e. from 2.9.2008 which has been accepted by the Govt. vide their O.M. dated 2.9.2008 is to say the least unconstitutional in the light of the judgment dated 17.12.82 of the Hon‟ble Apex Court what is popularly known as the Nakara Judgment. They have ruled as under:-
That by introducing an arbitrary eligibility criteria : being in service and retiring at a subsequent date for being eligible for the liberalization in Pension Rules (or any other liberalization in Pension Rules) and thereby piding a homogeneous class (Pensioners-past, present and future), this classification being not based on any discernible rational principle and having been found wholly unrelated to the object sought to be achieved by grant of such liberalization and the eligibility criteria being thoroughly arbitrary, we are of the view that eligibility for the Liberalized Pension Scheme of being in service on the specified date and retiring subsequent to that date violates Article 14 of the Constitution and is unconstitutional and is struck down
With due respect to the VI CPC, it is, therefore, stated that the above recommendations vide para 5.1.33 of their Report from a prospective date (vide para 6.5.3 of VI CPC Report) is ultra sires of Art 14 of the Constitution and may therefore be rejected. Not only those who have retired between 1.1.2006 and 1.9.2008 but even those who retired prior to 1.1.2006 may be granted full pension if they had rendered 20 years of service i.e. 50% of the average emoluments for the last 10 months or the last pay if that be more beneficial.
Daily Allowance on Tour
The DA rates may be revised with regard to those drawing Grade Pay of 4200 to 4800 and below 4200 in the following manner.
Rs. 4200 to 4800 – Reimbursement of hotel accommodation of upto Rs. 1000/- per day; reimbursement of travel charge upto Rs. 150/- per diem for travel with in city and reimbursement of food not exceeding Rs. 200 per day. The reimbursement of travel and food charges may be made on self-certification or on assumption that the prescribed amount has been opted.
Below Rs. 4200 – Reimbursement of hotel accommodation of upto Rs. 700/-per day; reimbursement of travel charges upto Rs. 150 per diem for travel within city and reimbursement of food not exceeding Rs. 200 per day. The reimbursement of travel and food charges may be made on self-certification or on assumption that the prescribed amount has been spent.
This is being demanded because if is not the practice to get bill/receipt for fare charged by the Auto-Riksha or to insist for bill for tea/snacks/meals from dhaba/restaurant. The traveling employees (at least some of them) have arrangements to cook their meals etc while on tour and stay in places other then hotels having tariff rates etc in their case obtaining receipts for stay, etc., is not even called for.
It is, therefore demanded that a fixed Daily allowance rate for stay, local travel, food etc may also be prescribed has was done before we propose the following rates of D.A:
Grade Pay 4800 to 4200
50% of hotel rates i.e.Rs.500/- plas 350/- for local Travel and food i.e.Rs.850/-
50% of hotel Rates i.e. Rs. 350/-+Rs350 i.e. Rs. 700
There are many employees in surveys Departments like Survey of India, Geological Survey of India etc and Ground Water Board who go on field duties, live in tents, cook their meals and travel to the areas being surveyed by them from their tents etc. there are no hotel / dhabas etc even available etc even available to them.
The above rates may be treated as alternate available to any touring employees.