Tuesday, November 6, 2012

Goa OA NO.444/2010 on ????? -2011



This the    day of            , 2011

Coram : Hon'ble Shri Justice V.K.Bali, Chairman,
   Hon'ble Smt.Leena Mehendale, Member (A).

Arezhi Sreedharan,
Flat No.1,
Villa Bambina,
Mamgor Hill,
Goa – 403 802. ...Applicant.
(By Advocate Shri G.Vijaychandran)


1) Union of India through
      The Secretary,
      Ministry of Defence,
      Room No.198,
      South Block,
      New Delhi – 110 011.

2) Chief of Personnel,
      Directorate  of Civil Personnel
      Services, Integrated HQRS,
      Ministry of Defence (Navy),
      Sena Bhavan,
      New Delhi – 110 011.

3) Flag Officer Commanding-in-Chief,
      Western Naval Command,
      Shahid Bhagatsingh Road,
      Mumbai – 400 001.

4) The Flag Officer Goa Area,
      Headquarters, Goa Naval Area,
      Goa – 403 802.  ...Respondents.
(By Advocate Shri M.Amonkar)
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: O R D E R :
{Leena Mehendale, Member (A)}
This OA is filed on 24.6.2010 under Section 19 of the Administrative Tribunals Act, 1985, on issue of pensionary benefits.
2. The undisputed facts of the case as contained in the OA as well as reply statement are that, the applicant who joined his service in the Civilian Section of Indian Navy on 27.5.1969 was to superannuate on 30.6.2009 on attaining the age of 60 years.  During the earlier part of his service, his date of increment was falling on 1st May.  His last promotion was received w.e.f. 26th May, 2008 to the post of Office Superintendent with respect to which his next due increment would have been on 1st May, 2009.  However, in pursuance of the VIth Pay Commission recommendations, his pay in the rank of Assistant was fixed at Rs.12,090/- with Grade Pay of Rs.4,200/- in the Pay Band – 2 of Rs.9,300-34,800 w.e.f. 1.1.2006. The next date of increment came to be 1.7.2006 as opted by the applicant under the Scheme of VI Pay Commission.  Thus, even though the applicant was promoted as Office Superintendent on 26.5.2008, his notional pay was fixed at Rs.13,090/- w.e.f. 26.5.2008 with Grade Pay of Rs.4,200/-, the date of next increment remained as 1st July.  Accordingly his pay was
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refixed at Rs.14,150/- w.e.f. 1.7.2008.

3. Both the parties are in agreement about the above factual position. It is thus clear that, the applicant got his last increment on 1.7.2008 bringing his pay to Rs.14,150/- w.e.f. 1.7.2008 and he would have got his next increment on 1.7.2009.  But, he retired just on the previous day viz. 30.6.2009 after having rendered one complete year's service with that pay.
4. He prays that having earned the right for an increment when serving till 30th June, 2009, his case be considered for increment as he was retiring on that day. In short, it is the case of the applicant that he is entitled to a benefit for the service rendered from 1.7.2008 to 30.6.2009.  Had he continued in the service for just one day, he would have been able to claim his increment for the service to be rendered in future i.e. beyond 1.7.2009.  However, the applicant would like to make a distinction between the entitlement for increment which is in respect of rendering future service  and the right to pensionary benefit which is in respect of the service rendered in past.
5. This is a peculiar case where the applicant has rendered one complete year of service in a particular
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grade, but his pensionary benefit would be counted at par with someone who has only a part of completed one year service.  The argument from the applicant's side is that since pensionary benefits are due for the reason of past service rendered, therefore the applicant should be held as entitled to the same pensionary benefits as he would have earned it on 1.7.2009.
6. The argument of the Respondents was that the Rule for next increment is very clear and the applicant has not been given increment on 1.7.2009 as he had already superannuated from the service on 30.6.2009.  The increment accrues only from 1st day following that on which it is earned.  Hence, even his pension benefits will be counted based on the salary during 1.7.2008 to 30.6.2009.
7. Thus, we find that a very fine distinction is sought to be made in this case.  The applicant claims that the increment is earned by him at the end of 30.6.2009, whereas the Respondents claim that the increment accrues only on 1.7.2009.  While the benefits are earned by way of past one year's service on 30.6.2009,  the accrual of increment will happen only on 1.7.2009.  The Rule is specific about increment, that in case he continues in service further than 1.7.2009, then his salary will be drawn by giving the effect of the increment that accrued on
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1.7.2009.  But, this Rule does not say anything about the pensionary benefits which are arising out of the service rendered and benefits earned which has
happened on 30.6.2009.
8. In view of this, a peculiar distinction has been made out by the applicant. He also evokes the principles of natural justice, viz. that when the Rules are silent on the particular question then they may be interpreted in such a way as to give rightful benefit to the applicant.

9. Here, we would like to refer to the Full Bench Judgment of this Tribunal (camp at Nagpur) in OA Nos.459/97 and 460/1997 Venkatram Rajagopalan & Anr. Vs. Union of India & Ors. decided on 15.10.1999, wherein it has been held as under:
“Superannuation – Retiral Benefits – Date of Retirement- A Government servant completing the age of superannuation on 31.3.1995 and relinquishing charge of his office in the afternoon of that day is deemed to have effectively retired from service w.e.f. 1.4.1995 – Applicants entitled to the benefits of O.M. Dated 14.7.1995 which provides enhancement of maximum limit of gratuity from 1.00 Lakh to Rs.2.50 lakhs to those Govt. employees who retire or die on or after 1.4.1995.

….., this Full Bench has to consider the following common question of law:

"Whether a Government servant completing the age of his superannuation on 31.3.1995 and relinquishing charge of his office in the afternoon of that day is deemed to have retired from service on superannuation with effect from 31.3.1995 itself or with effect from 01.4.1995?”
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2.The applicants in the two Oas were employees of the Postal Department and retired from service on completion of their age of superannuation on 31.03.1995.  They also started getting their pensions with effect from 01.04.1995.  O.M. No.7/1/95-pt pw(F) dated 14.07.1995 was, thereafter, issued by the Government of India, Ministry of Personnel, Public Grievances & Pensions (Department of Pension & Pensioners' welfare), regarding “treatment of dearness allowance as dearness pay for the purpose of death gratuity and retirement gratuity and raising the maximum limit of gratuity from Rs.1.00 Lakh or Rs.2.50 Lakh” in the case of “Central Government employees who retire or die on or after 1st April 1995.”  The applicants applied for the benefit arising out of this OM dated 14.07.1995, which was rejected on the ground that they had retired on superannuation on 31.3.1995 and not on or after 01.04.1995. These O.As have, therefore, been filed for directing the respondents to give them the benefit of the said OM after treating them to have retired from 01.04.1995.  As the question raised in these O.As was considered to be of general importance, it was recommended to be referred to the Full Bench and accordingly the matter has come-up before this Full Bench.

3.The Learned Counsel for the applicants submitted that the applicants continued to be in service till the mid night of 31.03.1995 and must, therefore, be deemed to have retired from service with effect from 01.04.1995.  Reliance was placed in the statutory rules and in a decision of Hyderabad Bench of this Tribunal in T. Krishna Murthy V/s. Secretary, Department of Posts and Others (1997) 35 A.T.C. 353.

4.While opposing the contention of the Learned Counsel for the applicants, the Learned Counsel for the respondents also relied on the very same statutory rules relied on by the Learned Counsel for the applicants and put his own interpretation.  T. Krishna Murthy's case (supra) was tried to be distinguished on two grounds:  It was a case of voluntary retirement, whereas the pesent cases are of retirement on superannuation; and two, the time and date of retirement in the reported case were fore-noon of 01.04.1995; whereas in the present cases, they were mentioned as after-noon of 31.03.1995. …...... the Learned Counsel for the respondents tried to impress upon us that the applicants must be deemed to have retired or ceased from service after the working hours of the office on 31.03.1995.

5.At the relevant time, F.R. 56 provided that every Government servant would retire from service “on the afternoon of the last day of the month” in which he attained the age of 58 years.  Rules 35 of the Central Civil Services (Pension) Rules, 1972 (in short Pension Rules).”

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"A superannuation pension shall be granted to a Government servant who is retired on his attaining the age of compulsory retirement”.

Rule 83(1) of the Pension Rules says:

Except in the case of a Government servant to whom the provisions of Rule 37 apply and subject to the provisions of Rule 9 and 69, a pension other than family pension shall become payable from the date on which Government servant ceases to be borne on the establishment.”

…......we are of the view that such an employee  retiring from service “on the afternoon of the last day of the month” is deemed to be continuing in service till the midnight of that day and accordingly for all practical and identical purposes, he must be deemed to have ceased from service or to have actually retired from service on and from the next date of attaining his age of superannuation, i.e., with effect from 1st of the month following the last day of the month of superannuation.  … … …

7.According to Rule 81(1) of the Pension Rules, Pension becomes payable form the date on which Government servant ceases to be borne on the establishment (emphasis given).  A Government servant continues to be bone on the establishment till midnight of the date of superannuation.  The decision of the Hyderabad Bench of this Tribunal in T. Krishna Murthy's case (supra) cannot be brushed aside …. Retirement may by voluntary or on superannuation.  The principles for payment of pension will not vary on the basis of these distinctions.  …....   In short, we are of the view that in the present cases the effective date of retirement would be 01.04.1995 and not 31.03.1995.

9.For the foregoing reasons, our answer to the question before this Full Bench is as follows:

A Government servant completing the age of superannuation on 31.03.1995 and relinquishing charge of his office in the afternoon of that day is deemed to have effectively retired from service with effect from 01.04.1995.”

10. Here we find that the applicant has rendered service to the Government for more than 40 years and in
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view of the last one years's service he has defenitely rendered his service for one complete year in the scale of Rs.14,150/- given to him on 1.7.2008.  Hence, we have no hesitation to allow the application.  Ordered accordingly.



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