ARMED FORCES TRIBUNAL REGIONAL BENCH, KOCHI O.A.NO. 148 of 2014 THURSDAY, THE 8TH DAY OF OCTOBER, 2015/16TH ASWINA, 1937 CORAM: HON'BLE MR. JUSTICE S.S.SATHEESACHANDRAN, MEMBER (J) HON'BLE VICE ADMIRAL M.P.MURALIDHARAN, AVSM & BAR, NM, MEMBER(A) APPLICANT: LT.COL.(RTD)P.R.G.NAIR, S/O LATE PARAMESWARAN PILLAI, AGED 77 YEARS, (PERSONAL NO.T.A.40896), NEENA HOUSE, COTTON HILL SQUARE, THIRUVANANTHAPURAM - 695 014. BY ADVS.M/S. C.S.G.NAIR & CHANDINI G.NAIR. versus RESPONDENTS: 1. PRINCIPAL CHIEF CONTROLLER OF DEFENCE ACCOUNTS (PENSIONS) DRAUPADIGHAT, ALLAHABAD - 211 014 2. DEFENCE PENSION DISBURSING OFFICER, PERUMANOOR P.O., THEVARA, COCHIN – 682 015. 3.ACCOUNTS OFFICER, ZONAL OFFICE (DPDO), DAD OFFICE COMPLEX, THIRUMALA P.O., THIRUVANANTHAPURAM – 695 006. 4. DIRECTOR GENERAL OF TERRITORIAL ARMY, GENERAL STAFF BRANCH, IHQ OF MINISTRY OF DEFENCE (ARMY), `L' BLOCK, CHURCH ROAD, NEW DELHI – 110 001. 5. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI – 110 001. 6. MANAGER, STATE BANK OF TRAVANCORE, KALOOR BRANCH, COCHIN – 682 017. R1 TO R5 BY ADV.SRI.K.M.JAMALUDHEEN, SENIOR PANEL COUNSEL & R6 BY SMT.P.P.STELLA.

: 2 :

O.A.No. 148 of 2014

ORDER VAdm.M.P.Muralidharan, Member (A): 1. The Original Application has been filed by Lt.Col. P.R.G.Nair, (Retd), T.A.No.40896,

who superannuated from

the Territorial Army on 30 November 1988 essentially aggrieved by the order for downward revision of the pension being paid to him post VI Central Pay Commission (VI CPC) and recovery of 2006 to

over payment of pension from 01 January

31 March 2013.

He has sought

quashing of the

order reducing his pension and recovery of excess paid (Annexure A2) and conditions stipulated in Para 5 of Government

of

India

Order

on

implementation

of

recommendations of VI CPC promulgated for Armed Forces vide Government of India, Ministry of Defence

Letter

No.17(4)/2008(1)/D(Pen/Policy) dated 11 November 2008 (Annexure A13) wherein 33 years of linkage is given for full pension.

He has further sought

refund

recovered

from

grant of Rs.25,700/- as

his pension and

pension with effect from 01 January 2006.

of the amount

: 3 :

O.A.No. 148 of 2014

2. Shri C.S.G.Nair, learned counsel for the applicant submitted that on implementation of the VI CPC, the pension of the applicant was revised to Rs.20249/- per month. April

2013,

Disbursing

based Officer

on

the

(Annexure

orders

of

Defence

A2),

it

was

In

Pension

reduced

to

Rs.16355/- by the disbursing Bank. The applicant was also informed that an amount of Rs.4,41,457/- which was paid in excess would be recovered in instalments of Rs.12,000/- per month.

On receipt of the information, the applicant

sent

representations to Respondents 2 and 3, based on which the recovery was reduced to Rs.9,000/- per month. The learned counsel further submitted that as per Serial No. 12 of the Annexure to Government Resolution No.38/37/08-P&PW(A) dated 29 August 2008, implementing recommendations of the VI CPC,

revised pension,

in no case,

shall be lower

than 50% of the sum of the minimum of the pay in the pay band and the grade pay thereon corresponding to the prerevised pay scale from which the pensioner had retired. While this had been included in the Ministry of Defence policy

: 4 :

O.A.No. 148 of 2014

Letter at Annexure A13 as Para 5, a proviso had been added that the pension so calculated will be reduced pro-rata, if the pensioner

had

less

than

the

maximum

service of 33 years for full pension. counsel,

required

As per the learned

this condition of requirement of 33 years for full

pension is not as envisaged in the original Resolution of August 2008.

Learned counsel further submitted that the

question of pro-rata calculation had been considered by the Central

Administrative

Tribunal,

Ernakulam

Bench

in

O.A.No.715 of 2012 and connected case (Annexure A19), wherein based on decision of Principle Bench of CAT in O.A.No.655/2010 it was held that it was not permissible to introduce such clauses without reference to the Cabinet. This was upheld by the Hon'ble High Court judgment

in

OP(CAT)

4/2014

and

of Kerala in its connected

case

(Annexure A20). The decision of Principal Bench of CAT had been

upheld

by

the

Hon'ble

High

Court

of

Delhi

in

WP(C)No.1535/2012 and connected cases (Annexure A15) by following a Division Bench decision of the Hon'ble Punjab

: 5 :

O.A.No. 148 of 2014

& Haryana High Court in W.P.No.1964/2009 (R.K.Agrawal & Ors. vs. State of Haryana & Ors). Further, revision of pensions

issued

vide

Ministry

No.1(11)/2012-D(Pen/Policy)

of

dated

Defence

17

January

Letter 2013

(Annexure A14) with effect from 24 September 2012 was also incorrect as it should be from

01 January 2006 as

covered by judgment of Hon'ble Delhi High Court at Annexure A15 is the submission of the counsel.

3. The learned counsel also submitted that while the judgments quoted

were in respect of civilian pensioners,

the

equally

principle

including

was

applicable

military pensioners. Therefore

to

all

pensioners

the applicant was

entitled to minimum pension equivalent to 50% of the minimum pay in the pay band plus grade pay and military service pay of the rank of Lt Col from which he retired. Hence as per the learned counsel, reduction of pension of the applicant was illegal and further,

recovery of the excess

amount paid to the applicant was not permitted by law as

: 6 :

O.A.No. 148 of 2014

he was a retired person, in view of the judgment of the Hon'ble Apex Court in Civil Appeal No.11527 of 2014 (State of Punjab & Ors. vs. Rafiq Masih, (2015) 4 SCC 334). The learned counsel therefore prayed for quashing of the order at Annexure A2 and the condition stipulated at Para 5 of

Annexure

A13

wherein

the

pensions

of

pre-2006

pensioners were to be reduced pro-rata if the pensioner had less than maximum required service of 33 years for full pension.

The learned counsel further

prayed that the

applicant be granted a monthly pension of Rs.25,700/- with effect from 01 January 2006 with all consequential benefits including interest and also refund of the amount recovered from pension of the applicant.

4. Shri K.M.Jamaludheen, learned Senior Panel Counsel appearing for the respondents submitted that the applicant was governed by the Letter issued by Ministry of Defence being a pensioner from Territorial Army.

In accordance with

the basic policy letter on revision of pension of pre-2006

: 7 :

O.A.No. 148 of 2014

Armed

Forces

pensioners

(Annexure

clarifications issued from time to time,

A13)

and

other

the applicant was

only eligible for pension of Rs.16355/- with effect from 01 January 2006 which was revised to Rs.16715/- with effect from 24 September 2012 (Annexure R2(c)).

He further

clarified that in accordance with the policy (Annexure A13), consolidation of pension will be subject to provision that in no case it shall be lower than 50% of the sum of

the

minimum of the pay in the pay band and the grade pay thereon corresponding to the pre-revised scale from which the

pensioner

retired

including

military

service

pay.

However the pension so calculated will be reduced pro-rata, where a pensioner has less than the maximum required service of 33 years for full pension. Further, in accordance with the policies,

there was no weightage admissible for

Territorial Army Officers (Annexure

R2(a)). He further

submitted that pension at the rate of Rs.25,700/- being claimed by the applicant was only admissible to those pre2006 officers

who had completed 33 years of qualifying

: 8 :

O.A.No. 148 of 2014

service.

Therefore there was no illegality or irregularity in

fixation of pension of the applicant.

5. Heard rival submissions and perused the records.

6. Shorn of details, the two essential issues to be looked at are whether the pension of the applicant has been correctly fixed and the aspect of recovery of excess amount paid to the applicant.

7. The implementation of recommendations of VI CPC in respect of revision of pension of pre-2006 Armed Forces pensioners was to be in accordance with Ministry of Defence policy

letter

Consolidation

of of

11

November

pension

of

2008

(Annexure

existing

A13).

pre-1.1.2006

pensioners/family pensioners was to be governed vide Para 4.1 of the Letter.

Such consolidation was further subject to

Para 5 of the same letter.

Paragraphs 4.1 and 5 being

relevant are re-produced below:

: 9 :

O.A.No. 148 of 2014

4. Consolidation of Pension 4.1.The Pension/Family Pension of existing Pre1.1.2006 pensioners/family pensioners will be consolidated with effect from 1.1.2006 by adding together: (i) The Existing Pension (including commuted portion of pension, if any)/Existing Family Pension. (ii) Dearness Pension, if any, as applicable from 1.4.2004 to those retired /died prior to 1.4.2004. (iii) Dearness Relief upto AI CPI (IW) 536 i.e. 24% of basic pension/family pension plus dearness pension. (iv) Fitment weightage @ 40% of the Existing Pension/ Existing Family Pension. Where the amount of fitment weightage works out in fraction of a rupee, it will be rounded off to the next higher rupee. NOTE: Where the Existing Pension/Existing Family Pension includes the effect of merger of 50%

of

Dearness

Pay

in

respect

of

those

retired/died on or after 1.4.2004, the existing pension/family pension for the purpose of fitment weightage will be re-calculated after excluding the merged Dearness Pay of 50% from emoluments for computation of existing pension/existing family pension. This will be in line with the definition of “Existing Pension” and “Existing Family Pension” given in Para 3 of these orders. ...... 5.The consolidation of pension will further be subject to the provision that the consolidated

: 10 :

O.A.No. 148 of 2014

pension, in no case shall be lower than fifty percent of the minimum of the pay in the pay band plus the grade pay corresponding to the pre revised scale from which the pensioner had retired/discharged including Military Service Pay and ‘X’ Group pay where applicable. For example, if a pensioner had retired in the pre-revised scale of pay of 6600 – 170 – 9320, the corresponding pay

band

being

9300

-

34800

and

the

corresponding grade pay and Military Service Pay being Rs. 4,600/- and Rs. 2,000/- respectively, his minimum guaranteed pension would be 50% of Rs. 9300 + Rs 4600 + 2000 i.e. Rs 7,950 for 33 years of qualifying service. The pension so calculated will be reduced pro-rata, where the pensioner had less than the maximum required service of 33 years for full pension and in no case it will be less than Rs. 3,500/-. In case the pension consolidated as per Para 4.1 above is higher than the pension calculated in the manner indicated above, the same (higher consolidated pension) will be treated as Basic Pension with effect from 1.1.2006.” . . . . . . .”

8. Sri.Pankaj Bhatnagar, Assistant Accounts Officer from the Office of

PCDA (P), Allahabad, Respondent No.1,

who assisted the learned counsel for the respondents apprised us on the pension of the applicant as per details

: 11 :

O.A.No. 148 of 2014

submitted by the PCDA (P), Allahabad. Based on the applicant's actual qualifying service of 21 years and 15 days, his pension on retirement with effect from 01 December 1988 calculated on the basis of last 10 months average emoluments was notified as Rs.1369/- per month. Post implementation of V CPC, based on modified parity being beneficial it was revised to Rs.4678/- with effect from 01 January 1996.

Revision of pension of the applicant post VI

CPC, based on Paragraphs 4.1 and 5 of the Government of India

Orders

(Annexure

A13)

submitted

by

PCDA

(P)

(Respondent No.1) vide Letter No.LC-IV/OA No.148/2014/M2084 dated 27 July 2015 and being relevant is re-produced below: “(1) If the pension of the officer is revised on

the

basis

No.

of

para

4.1

of

GOI,

MoD

letter

17(4)/2008(1)/D (Pen/Policy) dated 11/11/2008. Revised

consolidation

of

pension

comes

Rs.10,574/-, which is not beneficial to him.

to The

calculation of which is as under: (i) The existing pension = Rs.4678.00 (ii) Dearness Pension (50%) = 50% of Rs.4678.00 = Rs.2339.00

: 12 :

O.A.No. 148 of 2014

(iii)

Dearness Relief ie. 24% on sum of basic pay

plus dearness pay = 24% of Rs(4678 + 2339) = Rs.1684.08 (Say Rs.1685.00) iv. Fitment Weightage ie. 40% of existing pension = 4678 x .40 = Rs. 1871.20 (Say Rs.1872.00) Total Pension as on 01.01.2006 = Rs.10574.00. But the pension of above named officer w.e.f. 01.01.2006 will be worked out to @ Rs.16,355/- PM on the basis of para 5 of ibid Govt. order (Modified Parity) and Annexure referred to this office circular no.452 dated 21/02/2011 which is more beneficial calculated as per following formula. Basic pension of the officer w.e.f. 01.01.2006 for 21 years of qualifying service = 50% of

[(37,400

(minimum of pay in pay band) + 8000 (Rank Pay) +

6000

(Military

Service

Pay)]

x

(21/33)

=

Rs.51,400/2 x 21/33 = Rs.16,354.54 = Rs. 16,355/- (say) ”

9. Therefore based on the methodology as laid down in the Ministry of Defence policy letter implementing revision of pension of pre-2006 Armed Forces pensioners (Annexure A13), the applicant was entitled to a pension of Rs.16,355/per month with effect from 01 January 2006, as calculations

: 13 :

O.A.No. 148 of 2014

based on Para 5 of the Government policy (Annexure A13) was more beneficial to him.

Further pension was to be re-

fixed in accordance with Ministry of Letter dated 17 January 2013 (Annexure A14) to Rs.16715/- with effect from 24 September

2012.

However

the

applicant

was

paid

Rs.20249/- per month with effect from 01 January 2006 due to an erroneous fixation. While neither the applicant nor the respondents have pointed out how this erroneous figure was arrived at, perusal of policy letters indicate that the figure of Rs.20249/- was for Lt Col (TS) of the regular Army with 21 years of service. The applicant being from the Territorial Army was not entitled to weightage which is added to the qualifying service in case of a regular Army personnel (Annexure R2). Therefore, in our view, there was nothing illegal in issuing of Annexure A2 wherein the erroneous fixation

and the

resulting excess payment made was sought to be corrected. This would be in keeping with the decision of the Hon'ble Apex Court in

Union of India vs.

SR Dhingra & Ors.,

(2008) 2 SCC 229, where it was held as follows:

: 14 :

O.A.No. 148 of 2014

“23.

. . . . . . . .It appears that due to a

clerical error the notional benefits of the respondents w.e.f. 1.1.1986 were wrongly fixed and such retired employees are getting excess pension. mistake does

It is well settled that a

not confer any right to any

party and can be corrected. “

10. at

It is also observed that soon after issue of letter

Anneuxre

A2,

the

applicant

made

a

series

of

representations, wherein essentially the issue raised by him has been that the amount paid to him was due to no fault of his and therefore it should not be recovered. Nowhere has he challenged the issue that the pension revised has been incorrectly fixed,

nor that it is not in keeping with the

resolution passed post VI CPC. has

challenged

the

It is only in the O.A that he

conditions

of

pro-rata

stipulated in policy letter at Annexure A13. view, unless the stipulation of

reduction

Therefore, in our

requirement

of 33 years of

service for full pension is found to be illegal,

the fixation of

pension of the applicant cannot be held as incorrect.

: 15 :

O.A.No. 148 of 2014

11. Pension Regulations for the Army 1961 which was prevalent when the applicant retired specifies rates of retiring pension and Reg 29 being relevant is reproduced below: “29. Retiring pension for 33 qualifying years service shall be calculated at the 50% of the average emoluments

reckonable

for

pension

(Pay+

Non-

practising allowance and rank pay, if any drawn by the officer during last 10 months of his service) to Rs.1275/-. Note:--The retiring pension of an officer of the rank of

Lt.Col

(TS)

Brigadier

or

Major

General

and

equivalent shall not be less than the pension which would have been admissible to him as a Major,. Colonel or a Brigadier and equivalent as the case may be had he not been promoted to the higher rank.”

12. Pension Regulations for the Army revised in 2008 prescribes rate of retiring pension and Regulation 36 being relevant is reproduced below: “36. Retiring pension for 33 years of qualifying service shall be calculated at 50 per cent of average of emoluments reckonable for pension as determined in Regulations 35 above,

subject to

the ceiling prescribed by Government from time to time.

For lesser period of reckonable qualifying

service, the amount of pension shall be reduced

: 16 :

O.A.No. 148 of 2014

proportionately”.

13. It is thus observed that pension

regulations

stipulate a pro-rata reduction wherein reckonable qualifying service is less than 33 years.

14. While

the learned counsel for the applicant has

only referred to serial 12 of the Annexure to Government Resolution on Pension dated 29 August 2008, it is observed that there are two other relevant provisions which have a linkage. At serial 2, dispensation of linkage of full pension with 33 years of qualifying service has been recommended along with dispensing with the benefit of adding years of qualifying service for computing of pension.

While this has

been accepted by the Government, at serial 3, recommendation

is

that

payment

of

full

pension

the on

completion of 20 years of qualifying service is to take effect only prospectively for Government employees other than PBORs in the Defence Forces. This has also been accepted by the Government.

It is also observed that there are

O.A.No. 148 of 2014

: 17 :

separate orders for 'pre' and 'post' 01 January 2006 pensioners. In the orders for Government servants who retired on or after 01 January 2006, the linkage of

full

pension with 33 years of qualifying service has been dispensed with from the date of issue of the Office Memorandum.

15. The judgments cited by the learned counsel for the applicant (Appendices A15 to A17 and A19) are essentially decisions of Principal Bench

and other Benches of the

Central Administrative Tribunal (CAT) which were upheld by various Hon'ble High Courts. Even though the judgments pertain to Pre-2006 pensioners

they were

in respect of

pensioners governed by Central Civil Services (Pension) Rules 1972 and corresponding Rules applicable to other Civil Services.

The

Government

of

India

Memorandums referred to in the judgments separate orders will be issued

Orders

and

state that

by Ministry of Defence in

regard to Armed Forces pensioners/family pensioners. That

: 18 :

O.A.No. 148 of 2014

is because, Armed Forces are governed by a separate set of pension

regulations.

Based

on

those

regulations

and

government orders special Army instructions and equivalent instructions for the Navy and Air Force are issued for implementation of recommendation of the Pay Commission. It is pertinent that the VI CPC, even in its recommendations on

pay

structure

and

fixation

made

separate

recommendations for pay scales of Defence Forces.

16. Further, the judgments anomalies

that

had

clarification/amplification

crept

essentially examined the in

while

issuing

to

the

orders

resolutions/recommendations accepted by the

Government

post VI CPC. The specific aspect of linkage of 33 years for full pension had not been looked into in any of the judgments. The

order of the Division Bench of the Hon'ble

High Court of Delhi in WP(C) No.2350 of 2012 (Annexure A15) examined Office Memorandum No.F.38/37/08-P&PW(A) issued by Government of India on 28th January 2013 on

O.A.No. 148 of 2014

: 19 :

revision of pension of Pre-2006 pensioners.

Hon'ble High

Court looked at Paragraph 9 of the OM as the only issue that survives, which was the effective date of orders ie from 24 September 2012. In rest of the judgment the Hon'ble Court concurs with the views of Division Bench of Punjab

&

Haryana High Court in the case of R.K.Agarwal and Others (supra). The judgment of the Punjab & Haryana High Court itself was upholding the Full Bench judgment of the CAT in O.A.655 of 2010. In effect, vide the orders at Annexure A15 the Hon'ble High Court upheld the views of Full Bench of CAT and directed that arrears be made effective from 1 January 2006.

17.

It is also observed that the OM of 28 June 2013

referred to by the Hon'ble High Court, had modified pensions as per orders of Full Bench of CAT in O.A.655 of 2010. However at Para 5 of the OM, specific requirement of service for full pension has been indicated. No observation on the same was made by the Hon'ble High Court. The para being

: 20 :

O.A.No. 148 of 2014

relevant is reproduced below: “5. The pension so arrived at in accordance with para 2 above and indicated in Col.9 of Annexure will be reduced pro-rata, where the pensioner had less than the maximum required service for full pension as per rule 49 of the CCS(Pension) Rules, 1972 as applicable before 1.1.2006 and in no case it will be less than Rs.3500/- p.m.”

18.

It is also observed that Government of India vide

Ministry of Personnel PG & Pensions O.M.No.38/37/08-P &PW(A) dated 30th July 2015 has further clarified revision of pension of pre-2006 pensioners based on various judgments. The only aspect amended in the earlier OM of 28 January 2013 was the date of effectiveness to 1 January 2006 based on the directives of the Hon'ble High Court (Annexure A15). All other conditions including linkage of service pension has been

retained.

Paras 3, 4 and 6 of the OM

being relevant is reproduced below: “3.

The

above

order

for full

was

challenged

by

the

Government by filing Writ Petition No.1535/2012 in respect of OA No.655/2010 and WP No.2348-50/12 in respect of the three other connected OAs in the High Court of Delhi. The Hon'ble High Court in its

: 21 :

O.A.No. 148 of 2014

common Order dated 29.4.2013 noted that

the

DoP &PW had, in the meanwhile, issued an OM No.38/37/08-P&PW(A)

dated

28.1.2013

which

provided for stepping up of pension of pre-2006 pensioners

w.e.f.

24.9.2012

to

50%

of

the

minimum of pay in the pay band and grade pay corresponding to pre-revised pay scale from which the pensioner had retired. Hon'ble High Court observed that the only issue which survived was, with

reference

28.1.2013

to

Paragraph

which

makes

it

9

of

OM

dated

applicable

w.e.f.

24.9.2012 instead of 1.1.2006. Hon'ble High Court of Delhi dismissed the Writ Petition No.1535/2012 along with three other Writ Petitions vide its order dated

29.4.2013.

(No.23055/2013

and

Special

Leave

Petitions

No.36148-50/2013)

filed

against the said Order dated 29.4.2013 of the Hon'ble Delhi High Court have also been dismissed by the Hon'ble Supreme Court.” “4.

Accordingly, in compliance with the above

judicial pronouncements, it has been decided that the

pension/family

pensioners/family accordance

with

pension

pensioners this

of

all

may

pre-2006 revised

Department's

in OM

No.38/37/08-P&PW(A) dated 28.1.2013 with effect from 1.1.2006 instead of 24.9.2012.

Further, this

benefit has already been granted to the applicants in OA No.655/2010 vide OM of even

No. dated

26.8.2014 read with OM dated 19.9.2015 following dismissal of SLP(C) No. 23055/2013 by the Hon'ble Supreme Court.”

O.A.No. 148 of 2014

: 22 :

“6. All other conditions as given in OM No.38/37/08P&PW(A) dated 1.9.2008, as amended from time to time shall remain unchanged.”

19. As all the judgments cited by the learned counsel for the applicant, were linked to the Full Bench O.A.655 of 2010 in its

decision of CAT in

orders issued on 1 November 2011, we

feel it would be only fair to look at issues raised in it. The first issue examined in the judgment was whether the applicants who are pre-2006 retirees were justified in claiming

pension at par

with post-2006 retirees. While that issue is not as such projected and challenged in the instant OA, case of the applicant to impeach 'pro rata reduction' under 5.2 is essentially founded on 'parity'

with post-2006 retirees. Relevant findings of the judgment in OA.NO.655 of 2010 in this regard being applicable are quoted below: “3.In order to decide the aforesaid issue, few relevant facts may be noticed.

The Government of India constituted VI

Central Pay Commission (VI CPC) on 05.10.2006, inter alia, to examine the principles which should govern the structure of pension, death-cum-retirement gratuity, family pension and other terminal or recurring benefits having financial implications to the present and former Central Government employees appointed before 1.1.2004.

The report was

submitted by the Commission on 24.03.2008.

The Pay

: 23 :

O.A.No. 148 of 2014

Commission

made

separate

recommendations

revision of pension of the past pensioners determination

of

pension

of

those

determination

of

implementation

pension of

its

of

those

and for

retiring

implementation of its recommendations.

for after

In regard to retiring

after

recommendations,

the

Commission recommended linkage of full pension with 33 years of qualifying service should be dispensed with. Once an employee renders the minimum pensionable service of 20 years, pension should be paid at 50% of the average emoluments received during the past 10 months or the pay last drawn, whichever is more beneficial to the retiring employee.

Simultaneously,

the extant benefit of adding years of qualifying service for purposes of computing pension/related benefits should be withdrawn as it would no longer be relevant. However,

regarding

revision

of

pension

of

past

pensioners the Commission made recommendations as per para 5.1.47 of the report which recommendation of the Commissioner was accepted by the Government with certain modifications to which we will advert at a later stage. Thus, this modified formula formed basis for revision of the pension of the pre-2006 retirees, as adopted

by

resolution

dated

29.08.2008,

which

according to applicants has not even been followed by the respondents in its true letter and spirit. Since the VI CPC has made separate recommendations for pre2006 retirees and post-2006 retirees as such the Government issued two different OMs based upon the recommendations of the Central Pay Commission, i.e., one regarding revision of pension of past pensioners and second regarding post-2006 retirees.

It is in the

: 24 :

O.A.No. 148 of 2014

light of the aforesaid factual aspects the matter is required to be examined. “5.

Thus the Apex Court in the case of D.S. Nakara

(supra) has not held that the cut off date when an upward revision is introduced cannot be prescribed and is arbitrary At this stage it may also be useful to notice the decision of the Constitution Bench of the Apex Court in the case of Indian Ex-Servicemen League and others v. Union of India, (1991) 2 SCC 104, whereby the Apex Court explained the ratio laid down in the case of D.S. Nakara (supra) and has also relied upon its earlier constitution Bench decision in the case of Krishena Kumar v. Union of India, (1990) 4 SCC 207 and held that the Court#s decision in D.S. Nakara (supra) has to be read as one of limited application and its ambit cannot be enlarged to cover all claims made by the pension retirees or a demand for an identical amount of pension

to

every

retiree

from

the

same

rank

irrespective of the date of retirement, even though the reckonable emoluments for the purpose of computation of their pension be different. “9.

Yet for another reason, pre-1.1.2006 and post-

2006 retirees cannot be extended the same pensionary benefits inasmuch as the respondents on the basis of the recommendations of the VI CPC have issued two different Schemes for pre-2006 and post-2006 retirees. As regards, post-2006 retirees respondents have issued OM dated 2.9.2008 (Annexure R-1) as to how the pension has to be computed. As can be seen from this scheme, emoluments have to be computed on the basis

: 25 :

O.A.No. 148 of 2014

of the revised pay structure and further as can be seen from paras 5.2 and 5.3 of the said OM #qualifying service# for the purpose of pension has been reckoned as 20 years as against 33 years, which was prevalent in respect of the employees who retired before 1.1.2006 and also that emoluments for the purpose of pensionary benefits have to be determined on the basis of 10 months# average emoluments or emoluments last drawn

by

the

employee

before

whichever is more beneficial.

his

retirement,

Applicants have not

challenged the validity of the OM dated 2.9.2008.

As

such, on these grounds pre-2006 retirees cannot claim benefit

at

par

with

post-2006

retirees,

who

are

governed by the separate set of Scheme.”

20. The other issue looked at by the Full Bench of the Central Administrative Tribunal was that: “2 . . . . . . The further grievance raised by the applicants is that their notional pay fixation and consequent pension should not be lower than 50% of the sum of the minimum of the pay in the pay band and the grade pay thereon corresponding to scale of pay from which they had retired, as accepted by the Government vide resolution dated 29.08.2008 and the clarification issued by the respondents vide impugned OM dated 3.10.2008 and 14.10.2008 contrary to the Resolution dated 29.08.2008 and OM dated 1.9.2008 in regard to para

4.2,

are

illegal,

arbitrary,

discriminatory,

: 26 :

O.A.No. 148 of 2014

unreasonable and unjust, as according to the applicants in the clarification/modification order dated

3.10.2008

respondents

had

added

and

deleted certain words, which completely changed its meaning as per the recommendations of the Commission as accepted by the Government. other

words,

the

grievances

raised

by

In the

applicants are that the respondents have not revised pension of the pre-2006 retirees even as per the modified parity/formula recommended by the

Pay

Commission

and

adopted

by

the

Government vide resolution dated 29.08.2008.. . . . . . . . .”

(emphasis supplied)

21. Relevant paras of the judgment in this regard are given below:

“26.

As can be seen from the relevant portion of the

resolution

dated

29.8.2008

based

upon

the

recommendations made by the VI CPC in paragraph 5.1.47, it is clear that the revised pension of the pre2006 retirees should not be less than 50% of the sum of the minimum of the pay in the Pay Band and the grade pay thereon corresponding to the pre-revised pay scale held by the pensioner at the time of retirement. However, as per the OM dated 3.10.2008 revised pension at 50% of the sum of the minimum of the pay in the pay band and the grade pay thereon, corresponding to pre-revised scale from which the

: 27 :

O.A.No. 148 of 2014

pensioner had retired has been given a go-by by deleting the words #sum of the# #and grade pay thereon corresponding to the pre-revised pay scale# and adding #irrespective of the pre-revised scale of pay plus# implying that the revised pension is to be fixed at 50% of the minimum of the pay, which has substantially changed the

modified parity/formula

adopted by the Central Government pursuant to the recommendations made by the VI CPC and has thus caused great prejudice to the applicants. According to us, such a course was not available to the functionary of the Government in the garb of clarification thereby altering the recommendations given by the VI CPC, as accepted by the Central Government. According to us, deletion of the words #sum of the# #and grade pay thereon

corresponding

to

the

pre-revised

scale#

#and addition of the words #irrespective of the prerevised scale of pay plus#, as introduced by the respondents in the garb of clarification vide OM dated 3.10.2008 amounts to carrying out amendment to the resolution dated 29.08.2008 based upon para 4.1.47 of the recommendations of the VI CPC as also the OM dated 1.9.2008 issued by the Central Government pursuant to the aforesaid resolution, which has been accepted by the Cabinet. Thus, such a course was not permissible for the functionary of the Government in the garb of clarification, that too, at their own level without referring the matter to the Cabinet.” “29.

From the above extracted portion it is clear that

the principle of modified parity, as recommended by the V CPC and accepted by the VI CPC and accepted

: 28 :

O.A.No. 148 of 2014

by the Central Government provides that revised pension in no case shall be lower than 50% of the sum of the minimum of the pay in the pay band and grade pay corresponding to revised pay scale from which the pensioner had retried.

According to us, as already

stated above, in the garb of clarification, respondents interpreted minimum of pay in the pay band as minimum of the pay band.

This interpretation is

apparently erroneous, for the reasons:..... “30.

In view of what has been stated above, we are

of the view that the clarificatory OM dated 3.10.2008 and further OM dated 14.10.2008 (which is also based upon clarificatory OM dated 3.10.2008) and OM dated 11.02.2009, whereby representation was rejected by common order, are required to be quashed and set aside, which we accordingly do.

Respondents are

directed to re-fix the pension of all pre-2006 retirees w.e.f.

1.1.2006,

based

on

the

resolution

dated

29.08.2008 and in the light of our observations made above. . . . .”

22. It is therefore observed that the judgment in O.A.655 of 2010 in considering the further grievance of the applicants in that case looked at the clarificatory OMs issued by Government of India wherein, key words such as 'sum of the minimum of the pay in the pay band and grade pay drawn corresponding to be revised scale from which the pensioner had retired' had been given a go-by by deleting

O.A.No. 148 of 2014

: 29 :

the words “sum of the” and “grade pay drawn corresponding the pre-revised” and adding “irrespective of the pre-revised scale of pay plus” which substantially changed the modified parity accepted by Government. It was

these aspects that

had been struck down by the Principal Bench of the CAT and subsequently upheld by the various High Courts.

As brought

out earlier, even in the Office Memorandums issued on 28 January 2013 and 30th July 2015, ie post the judgment, the linkage of required service for full

pension

has not been

modified. Therefore, we cannot agree with the contention of the applicant that his pension

should be fixed at Rs.25700

per month with effect from 1 January 2006 ie without any pro-rata reduction.

23. We now come to the aspect of upgradation of pension of the applicant undertaken vide policy letter dated 17 January 2013 (Annexure A14). The Government, based on recommendations of a Committee,

details of which are

not before us, had revised the pension with effect from 24 th

: 30 :

O.A.No. 148 of 2014

September 2012 which in case of the applicant was revised to Rs.16715/-. It has now been brought to our notice that, the Ministry of Defence based on Ministry of Personnel, PG & Pensioners OM of 30th July 2015 (referred to earlier) has, vide letter No.1(04)/2015(I)-D(Pen/Pol) dated 03 September 2015 issued amendment to policy Letter of 17 January 2013 (Annexure A14).

Based on the amendment, the step up in

pension will be with effect from 01 January 2006 instead of 24 September 2012.

24. We have already observed that any erroneous excess payment made can be corrected in accordance with the principles laid down in SR Dhingra case (supra). Apex Court had also considered the question

of right

The of

recovery of excess payment due to wrong and irregular fixation of pay in the case of Chandi Prasad Uniyal & Ors. vs. State of Uttarakhand & Ors., (2012)8 SCC 417. The Hon'ble Apex Court observed as follows: “13. We are not convinced that this Court in various judgments referred to herein before has laid down any

O.A.No. 148 of 2014

: 31 :

proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then only the amount paid could be recovered. On the other hand, most of the cases referred to herein before turned on the peculiar facts and circumstances of those cases either because the recipients had retired or were on the verge of retirement or were occupying lower posts in the administrative hierarchy.

14. We are concerned with the excess payment of public money which is often described as “tax payers' money” which belongs neither to the officers who have effected over-payment nor to the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in in such situations. The Question to be asked is whether excess money has been paid or not ,may be due to a bona fide mistake. Possibly, effecting excess payment of public money by the Government officers, may be due to various reasons like negligence, carelessness,

collusion,

favouritism,

etc.

because

money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without the authority of law can always be recovered barring few exceptions of

: 32 :

O.A.No. 148 of 2014

extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment. 15. We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case (supra) and in Col. B.J. Akkara (retd.) case (supra),

the

excess

payment

made

due

to

wrong/irregular pay fixation can always be recovered”.

25. A perusal of the aforesaid observations clearly indicate that it is not necessary that only in cases where it was

established

that

the

recipient

by

fraud

or

misrepresentation received excess payment can the amount be recovered.

The Apex Court further held that in most

cases the peculiarities of facts and circumstances are to be considered and more importantly the excess payment of public money which is often described as tax payer's money belong neither to the officers who effected payment nor to the recipients and therefore

the concept

of fraud or

misrepresentation cannot be brought in such situations. The Apex Court also observed that excess payment could have

: 33 :

O.A.No. 148 of 2014

been made due to a variety of reasons including negligence, carelessness and the

mistake may

even be mutual.

However any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardship but not as a matter of right.

It was further held

that law implies an obligation on the part of the payee to repay the money otherwise it would amount to unjust enrichment.

26. The

aforesaid principles laid down in Chandi

Prasad Uniyal (supra) has relevance in the instant case. As observed fixed

by us earlier, the pension of the applicant was

in excess of what was due to him as he was given

pension of a Lt Col (TS) of the regular Army and not that of the Territorial Army to

which the applicant belonged.

The

applicant therefore received excess payment without any authority of law and, in our view, cannot be permitted to deny the repayment.

: 34 :

O.A.No. 148 of 2014

27. It is observed that on the subject of recovery of wrongful excess payment, Government of India, Ministry of Personnel,

PG

&

Pension

had

issued

a

memorandum

F.No.18/26/2011-Estt (Pay – I) dated 06 February 2014 based on various Apex Court judgments.

The relevant

portions of the Memorandum is quoted below: “3. In view of the law declared by Courts and recently reiterated by the Honble Supreme Court in the above cited case, Chandi Prasad Uniyal & Ors. vs. State of Uttarakhand & Ors., 2012 AIR SCW 4742, (2012)8 SCC 417,

the

Ministries/Departments are advised to deal with the issue of

wrongful/excess payments as

follows:

i.

In all cases where the excess payments on

account of without following

wrong pay fixation, grant of scale

due

approvals,

the

procedure,

promotions or

in

without

excess

of

entitlements etc come to notice, immediate corrective action must be taken. ii. In a case like this where the authorities decide to rectify an incorrect order, a show-cause notice may

be

issued

to

the

concerned

employee

informing him of the decision to rectify the order

: 35 :

O.A.No. 148 of 2014

which has resulted in the overpayment, and intention

to

recover

Reasons

for

the

such

decision

excess

payments.

should

be

clearly

conveyed to enable the employee to represent against

the

same.

Speaking

orders

may

thereafter be passed after consideration of the representations, if any, made by the employee. iii. . . . . . . . . iv. Recovery should be made in

all cases of

overpayment barring few exceptions of extreme hardships. No waiver of recovery may be allowed without the approval of Department of Expenditure. v. While ordering recovery, all the circumstances of the

case

should

be

taken

into

account.

In

appropriate cases, the concerned employee may be allowed to refund the money in suitable instalments with the approval of Secretary in the Ministry, in consultation with the F.A. . . . . . . . . .”

28. In the case of Rafiq Masih (supra) cited by the applicant,

the Hon'ble Apex Court had

held that orders

seeking recovery of monetary benefits wrongly paid to employees can only be

interfered with in cases where it

: 36 :

O.A.No. 148 of 2014

would be iniquitous to recover the payment made. It was further held that benefit of non recovery cannot be extended to an employee merely because he was not an accessory to the mistake committed by the employer.

While it was also

held that recovery of excess payments should not be made from employees who have retired or are close to their retirement, it is pertinent that in the

Rafiq Masih case

(supra) there was no specific consideration of any case where excess payment was due to wrong fixation in revision of pension after retirement.

29. It is however observed from the records placed before us that no show cause notice or even any

advance

intimation was given to the applicant before commencement of recovery. No specific reasons were also given to the applicant for the refixation/recovery. The notice at Annexure A2 was only an intimation that recovery is being made and no opportunity was case.

given to the applicant to submit his

This in our view was incorrect.

Further, while the

: 37 :

O.A.No. 148 of 2014

representative of Respondent No.1 placed before us the methodology/pension

worked

out

based

on

original

Government orders on fixation of pension (Annexure A13), only one of the subsequent amendments (Annexure A14) was placed before us.

We are therefore not aware, if any

other changes have been made in the fixation of pension of the applicant or if action in accordance with MOD Letter of 03 September 2015 (referred to earlier) has been initiated. Therefore, in our view, the matter requires to be given due consideration by Respondent No.1 (PCDA (P)) for fixation of the applicant's pension with effect from 01 January 2006 in accordance with Government policies as modified/amended from time to time.

Further the applicant also needs to be

given an opportunity to present his case for fixation of pension and waiver of recovery of excess paid.

It will be

open to the applicant to give a detailed representation to respondent No.1 within

30 days

from today showing

hardship or extenuating circumstances, if any, in his favour for waiver of recovery in full or part, and, in the alternative

: 38 :

O.A.No. 148 of 2014

for repayment of excess amount drawn in instalments affordable by him.

30. In view of the foregoing, the Original Application is disposed of

with the direction to Respondent No.1

to

consider and pass appropriate order on the representation of the applicant, if any, submitted within the time limit fixed, communicate the

decision to the applicant and re-fix his

pension with effect from 01 January 2006 in accordance with Ministry

of

Defence

letter

dated

11

November

2008

(Annexure A13) as amended from time to time and make a fresh due and drawn statement the applicant.

and intimate the same to

Recovery of excess amount paid to applicant

from his pension is to be kept in abeyance from November 2015 till completion of the above.

However,

if no

representation is received from the applicant within the time limit fixed the recovery of excess amount paid may continue in accordance with law.

The entire process is to be

O.A.No. 148 of 2014

: 39 :

completed within four months from the date of receipt of a copy of this order.

31. There will be no order as to costs.

32. Issue free copy to the parties.

sd/-

sd/-

VICE ADMIRAL M.P. MURALIDHARAN, MEMBER (A)

JUSTICE S.S.SATHEESACHANDRAN MEMBER (J)

an. (true copy) Prl.Pvt.Secretary