ALL INDIA PENSIONERS’ ASSOCIATION OF
CBIC
PRESIDENT SECRETARY GENERAL A.K.Sharma Lokanath Mishra
Mob.9815300006 Mob.9437314941
ADDRESS FOR COMMUNICATION: JENA MATH LANE, PANCHU CHARU,
PURI-752001, ODISHA. Email jailoknathjee@gmail.com
To
The Hon’ble Minister of State,
I/C of DOPT,
New Delhi.
Sir,
Sub: One Notional Increment to those retired on 30th June after completion of 365
Days-Request for grant of notional increment for pension benefits-Reg.
As your good self are aware, the Honorable Apex Court through pronouncements in several of its judgements has said that the issue once decided should apply to all similarly placed persons. But in reality, the said policy is not being implemented properly. To quote, non-implementation of Honorable Madras High Court judgement inW.P.No.15732/2017 dt.15-9-2017(P. Ayyamperumal vs The Registrar, CAT,Madras & Ors),which has attained finality after Apex Court dismissal of SLP & RP filed by UOI to all similarly placed persons ( ie in REM) is a case on hand.
The Hon’ble High Court of Judicature at Madras, vide its Order dated 15.09.2017 in W.P. No. 15732 of 2017 (P. Ayyamperumal –Vs- The Registrar, Central Administrative Tribunal, Madras & Others) allowed the W. P. filed by a retired Central Government employee who retired on 30.06.2013. The Hon’ble Court directed the Central Government to grant him his annual increment for his service between 01.07.2012 and 30.06.2013, as he had completed one full year of service on 30 -06-2013 for the purpose of pension benefits and not for any other purpose, though he was no longer in employment on 01.07.2013. Refer: Document_1.pdf.
Against the above Order passed by High Court, Madras, Union of India filed Special Leave Petition (Civil) Diary No.22283 of 2018. The Hon’ble Apex Court, after hearing the Appellant therein and perusing the above referred Madras High Court Order, dismissed the Special Leave Petition on 23.07.2018. Refer: Document_2.pdf. Also, Union of India filed Review Petition R.P.(C) No.1731/2019 in SLP(C) No.22008/2018. The Apex Court, after hearing the appellant therein and perusing the records, dismissed the review petition on 08-08-2019. Refer: Document_3.pdf
On perusal of the above referred Orders passed by the High Court , Madras as well as Apex Court, a good number of employees , retired on 30th June submitted representations to higher officials from the level of Principal Chief Commissioners to Asst Commissioners and sought to extend the benefits arise out of the above referred Judgments in their case also by revising their Pension and other terminal benefits by including annual increment at the rate of 3% of their pay in the pay band and grade pay while calculating pension and other terminal benefits.
After perusal of the above-mentioned representations, the higher officials rejected such requests, citing CBIC, New Delhi letter F.No. A-23011/36/2013-Ad II A dated 18-10-2019 that the Hon’ble High Court, Madras judgment in W.P.No.15732 of 2017 dated 15-09-2017 is in personam and not in rem. Therefore, CBIC has implemented the High Court’s order in personam after dismissal of review petition filed with the Supreme Court for petitioner only which would not be quoted as precedent in future. In view of the above the applicant’s request cannot be considered. Refer: Document_4.pdf
CBIC letter F.No. A-23011/36/2013-Ad IIA dated 18-10-2019 speaks interalia to deny grant of notional increment for pension benefits to officers in similar cases on the following grounds:
“4.1. In so far as P. Ayyamperumal case is concerned, it is stated that the judgment of Hon’ble High Court of Madras is in personam.
4.2. Further, the case of Shri.M.Balasubramaniam referred by Hon’ble High Court in its judgment in P.Ayyamperumal case is related to Fundamental Rules of Tamil Nadu Government whereas P.Ayyamperumal case relates to Central Government Rules.
4.3. It is relevant to mention here that in a similar matter, Hon’ble High Court of Andhra Pradesh at Hyderabad in year 2005, in C.Subbarao case, has inter-alia observed as under:
In support of the above observations, the Division Bench also placed reliance on Banerjee case (supra). We are afraid, the Division Bench was not correct in coming to the conclusion that being a reward for unblemished past service. Government servant retiring on the last day of the month would also be entitled for increment even after such increment is due after retirement. We have already made reference to all Rules governing the situation. There is no warrant to come to such conclusion. Increment is given (See Article 43 of CS Regulations) as a periodical rise to a government employee for the good behavior in the service. Such increment is possible only when the appointment is “Progressive Appointment” and it is not a universal and other allowances only when he is entitled to receive pay from out of Consolidated Fund of India and continues to be in Government service. A person who retires on the last working day would not be entitled for any increment falling due on the next day and payable next day thereafter (See Article 151 of CS Regulations), because he would not answer the tests in these Rules. Reliance placed on Banerjee case (supra) is also in our considered opinion not correct because, as observed by us, Banerjee case (supra) does not deal with increment, but deals with enhancement of DA by the Central Government to pensioners. Therefore, we are not able to accept the view taken by the Division Bench. We accordingly overrule the judgment in Malakondaiah case (supra).”
It is on record that the Union of India had set out grounds as above, as grounds in the applications for SLP and review petition. The corresponding paras are tabulated below.
Paras in CBIC letter
Paras in grounds of SLP
Paras in RP
2 & 4.1
6(1)
3(I)
4.2
5 C
3E
4.3
5D
3F
Refer: Document_5.pdf, received through RTI request by a 30th June retiree.
As SLP and RP filed by the UOI before Apex Court have respectively been dismissed on 23-07-2018 and 08-08-2019, it is evident that the grounds set out are rejected grounds by the Apex Court. So, the identical grounds in paras 4.1 to 4.3 of CBIC letter dated 18-10-2019 also merit rejection.
The fourth ground i.e., para 4.4. is about the denial of notional increment for pension benefits to the petitioner-K.Sundar in order OA/310/00309/2019 dated 19-03-2019 & 2 other similarly placed persons by Hon’ble CAT, Chennai Bench. Refer: Document_6.pdf
In deciding notional increment for pension purpose in order dated 19-03-2019, Hon’ble Tribunal has analyzed the points listed below.
1) Age on retirement date. Justification for allowing the extended period, if any.
2) Whether employee – employer relationship exists on the date of retirement.
3) Whether any statutory provision exists for grant of notional increment for pension purpose.
4) If not, any case laws available for grant of notional increment for the above purpose.
The applicant justifies as below point wise.
1. Age on retirement as on 30-06-2018: 60 years plus no. of days applicant permitted to continue till 30-6-2018. The age on superannuation at any given period for a Central Government Employee is as per the recommendations of the Central Pay Commission (CPC) and acceptance by the Government of India. The CPC takes cognizance of various parameters like life expectancy, age on superannuation prevailing in other countries, demand of the service association/union etc., and makes recommendations. This being so, in recommendations of the 3rd CPC in para 15 of chapter 60 it was recommended that the retirement of government employee should take effect from the afternoon of the last day of the month in which the employee attains the age of superannuation (58 years) instead of afternoon of the actual date of superannuation to facilitate simplifying accounting works in respect of calculation of pay and allowances, the average emoluments, qualifying service etc., to help speedy settlement of pension claims. This recommendation of 3rd CPC has been accepted by the Ministry of Finance vide serial No.40 of Annexure to Resolution dated 01-05-1974. Based on the said recommendations necessary provision has been inserted in Rule 56(a) of FR to cover up the extended period of days remaining in the month of retirement in which the employee attained 58 years of age. By virtue of the recommendations of 5th CPC, the age of superannuation was extended to 60 years vide para 128.16 of the report and accepted by the Government of India for implementation vide Amendment in Rule 56(a) of FR by Department Notification No.25012/2/97-Estt. (A) dated 13-05-1998 and 27-05-1998.
2. The role of employee-employer relationship during the extended period should be looked into, which is discussed below. An employee, who is working under an employer (in the instant case the controlling authority designated by the statute and other officers down his rank, having supervisory control over the employee), if he happens to attain age of superannuation in the middle of a month, continues to perform the same works during the remaining period, till his relief from duty on the last day of the month. The works done by him (employee) on account of statutory compliance and the allotted works by the employer are closely monitored by the employer. In doing so, if there is any irregularity noticed by the employer, or comes to his knowledge he would endeavor to correct him and if warranted may even initiate disciplinary proceedings, which are possible on account of employee-employer relationship only. Thus, the employee-employer relationship continues to exist in the extended period also.
It is pertinent to point out In order OA No.170/00165/2019 dt 13-11-2019 (R.Kanakarajan vs UOI &Ors) of CAT, Bangalore Bench the existence of employer -employee till last day of retirement month followed by date of birth of retiree is established.(para 8 to10 of page no.59&60 of decision), which is extracted below,
“8 The resultant position is that under FR 24 a Govt servant employee gets the following rights
i. Even though his superannuation date may be any day of a particular month, since during the course of that entire month his services are utilized by the govt ,is being paid salary & for any infraction which occur during the period of the month following the actual date of birth of the Govt employee also to be held responsible & held to be a Govt employee till the end of the month .Then there cannot be any justice or logic in saying that notionally it should be taken that he would have retired on the actual date of birth falling due.
ii. Since by the juncture of the Govt & through their significant presence only the provision regarding retirement at the end of the month had been brought out. Then, the prejudice of which, if at all any cannot fall on the shoulders of the Govt employee.
9. Therefore, these are declared as significant factors to be considered in granting of increment under FR 24 & a judicial declaration is hereby issued.
10. Therefore, as a consequence it is declared as mandated that all persons who have completed 365 days in a year will now become eligible for the next increment on the completion of that year, even though the increment may notionally fall on the next date.” Refer: Document_7.pdf
1. Rule 10 of CCS Pay Rules 2008 relates to grant of increment on 1st July of every year on completion of one year of service but without any inbuilt provision therein for grant of notional increment for pension purpose only. But in some States’ Pension Rules, necessary provision exists for grant of notional increment for pension purpose.
“Andhra Pradesh Revised Pension Rules 1990 (Under Rules 31 & 32)”. Refer: Document_8.pdf
Where an employee’s date of increment falls due on the day following retirement, he/she may be given the benefit of increment notionally purely for the purpose of pensionary benefits. With effect from 27-10-1998 vide G.O. Ms.No.235 F& P dated 27-10-1998.
In the case of State of Tamil Nadu, no provision existed earlier in FR to sanction annual notional increment to government servants, who have rendered one full year of service and retired on superannuation on the last date of completion of one year and the increment due fall on the next day of superannuation. But based on the Pay Grievance Redressal Cell recommendations contained in G.O.Ms.No.311 dated 31-12-2014, grant of notional increment for pension benefits was implemented prospectively and later on extended to the earlier period also vide Government of Tamil Nadu Finance (Pay Cell) Department G.O.Ms.No.140 dated 25-04-2018.Also for this purpose Rule 26 -A of FR was inserted. Refer Document_9.pdf
2. In the case of P. Ayyamperumal Vs UOI and others the decision dated 15-09-2017 by High Court, Madras is that “The petitioner had completed one full year of service 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 judgment of High Court, Madras (reported in CDJ 2012 MHC 6525 passed in similar circumstances on 20-09-2012), naturally he has to be treated as having completed one full year of service, though the increment fell on the next day of his retirement and the petitioner should be given one notional increment for the period from 01-07-2012 to 30-06-2013 for pension benefits. (Para 7 of the decision).
Against High Court, Madras decision dt 15-9-2017, the SLP & RP filed in Apex Court have been dismissed. But it is a fact on record that after filing contempt petition - CP No.1875/2018 in WP No.15732/2017 by Sri P. Ayyamperumal, CBIC, vide letter F.No. A-23011/36/2013-Ad II A DT 30-8-2019 has been issued, in which in para 3, it has been stated that since the Apex Court has dismissed the RP of the Dept no recourse seems available &order dt 15-9-2017 of High Court, Madras in WP No.15732/2017, directing to grant one notional increment to petitioner retiring on 30th June needs to be implemented. Further stated in para 4 that direction to grant one notional increment for pension benefits to petitioner only to avoid contempt proceedings.
Refer Document_10.pdf
Now, the issue before UOI is whether the order is in personam or in REM, in the light of several judicial pronouncements by Apex Court.
CAT, Allahabad Bench, while deciding OA No.330/00146/2020 dt 26-2-2021 (Pravesh Chandra Gupta & 11 Ors vs UOI), taking into consideration various decisions of Apex Court, discussed therein has ordered in paras 23&24 of page nos .13 &14 as follows:
“23.In wake of law laid down in above cited judgements/orders, it cannot be said that the judgement passed by Hon’ble Madras High Court in the matter of K. Ayyamperumal (supra) is a judgement in personam & not a judgement in rem .Moreover, all the matters relating to pay fixation ,like present one under consideration , are governed by uniform policy of the Govt & therefore ,any judgement in these matters are always judgement in rem & cannot be interpreted as judgement in personam.
24. In view of above discussion, the Tribunal is of the opinion that the DOPT letter dt 18-10=2019 is definitely in teeth of all the above cited judgements. In wake of the undisputed fact that all applicants have completed one year of service before their retirement on 30th June, although in different years, all the impugned orders rejecting the claim of the applicants for release of the increment are quashed & set aside”. Refer Document_11.pdf Appeal filed by UOI against the said decision has been disposed of in High Court, Allahabad decision in WA No.7911/2021 dt 28-7-2021. Refer Document_12.pdf
In view of the above also, High Court, Madras decision dt 15-9-2017 in P.Ayyamperumal case is implementable in REM.
Several judgements on the matter of grant of notional increment to those central govt employees have been pronounced by High Courts of various States/CATs of various Benches, all primarily based on High Court, Madras decision In Ayyamperumal case. Against certain High Court decisions, the SLPs filed with Apex Court are pending decision & in those cases mostly stay granted. In one case, the Apex Court has dismissed SLP(C) Dy No.6468/2019 dt 29-3-2019—UOI vs Sakha Ram Tripathy on grounds of delay, keeping all questions of law open. In another case, against High Court, Delhi decision in WP (C) No.10509/2019 dt 23-1-2020, SLP DyNo.13959/2020 filed in Apex Court has been duly dismissed after hearing counsel for petitioners on 13-10-2020.
Refer Document_13.pdf. This is a 3-member Bench decision.
Taking into consideration that two SLPs dismissal orders in Ayyamperumal case &Gopal Singh case & one RP dismissal order against Ayyamperumal case, there is no reason to drag the issue without allowing notional increment for pension benefit to 30th June retirees in REM.
It is to be pointed out in recent letter F.No.19/2/2018-Estt (pay-I) dt 3-2-2021, DOPT has interalia reiterated the contention of earlier letter dt 18-10 2019, also citing SLP dismissal order on question of delay in Sakha Ram Tripathy case & advised to defend in various court cases in this matter. Refer Document_14.pdf
In the said DOPT letter, the APEX Court decision in Ayyamperumal case & Gopal Singh case are conspicuously absent.
In similar circumstances, in the matter of grant of MACP benefit, effective from 1-1-2006 to PBORs, even after appropriate decision by Apex Court for non-implementation of the decision the Court has come down heavily on Govt & dismissed the case in CA No. /2018 (arising out of DY No.8754/2018) dt 24-4-201—UOI vs Prithwi Singh & ors. Refer Document_15.pdf
This has prompted DoLA to evolve a procedure to constitute a Committee to identify /review all pending as well as fresh civil appeals/SLPs in which the issue involved has already been settled by the Courts vide No. J-12012/5/2016-Judicial (Part) dt 4-7-2018 r/w27-7-2018. Refer Document_16.pdf
It is pertinent to point out that if the spirit of said Apex Court decision dt 24-4-2018 has been followed, then, in view of dismissal orders in existence, as stated herein before, in Ayyamperumal & Gopal Singh cases, there is no possibility that SLPs pending cases now in notional increment issue have arisen.
We kindly request that taking into consideration all submissions as above, for a tangible action at appropriate level, which would pave way for dismissal of all pending SLPs in notional increment issue & facilitate grant of notional increment to 30th June retirees in REM.
Yours faithfully
(A.K SHARMA)
PRESIDENT
